Prisoner vote ban: Does Parliament have the courage to defy John Hirst?

Prisoner vote ban: Does Parliament have the courage to defy John Hirst?

(Amended headline) Does Parliament have the courage to defy this man?

By Daniel Hannan Mep
Last updated at 10:22 PM on 5th February 2011

At what stage should a criminal lose the right to vote? When he is arrested? When he is convicted? When he is incarcerated? When he has served a certain amount of time in prison? Or not at all?

It is a question on which reasonable people can disagree but it’s plainly a political, rather than a legal, question. So it’s quite right that MPs should have a free vote when the matter comes before them on Thursday.

Then again, there are free votes and free votes. Hanging over the House of Commons is the brooding menace of the European Court of Human Rights (ECHR).

Justice Secretary Ken Clarke made the threat explicit in a BBC interview, asking MPs who opposed the measure ‘how they are going to explain to their constituents that, at a time like this, we’re spending money on compensating prisoners for a right that they probably wouldn’t bother to exercise if we gave it to them’.

Right - or wrong? [libel removed] [correction now reads killer] John Hirst challenged the ban on prisoners voting

or seven years, the ECHR has argued the British Government breached the rights of John Hirst, a convicted [libel removed][correction now reads killer] who challenged our ban on prisoners being allowed the vote.

Last November, the Court issued an ultimatum which demanded the United Kingdom implement its judgment. The Government regretfully agreed, rather than risk the liability: lawyers are said to have rounded up 2,500 prisoners seeking payouts that could run to more than £100 million.

David Davis and Jack Straw have proposed that Parliament simply assert its will and invite the ECHR to challenge it.

Their motion would still open the door to compensation claims unless it were to state, explicitly, that it overrode any treaty commitments. But it is open to this country to do so. In a democracy, after all, laws should be made by elected representatives.

Compromise: Ministers are working on a deal to allow prisoners with sentences of less than six months to get the vote

As things stand, see how diminished we are as a country. Our legislators have contracted out their powers to a panel of foreign judges – judges who, in many cases, have never served a day on the bench in their home countries, having spent their careers as academics or politicians.

Suffrage is not a universal human right, for Heaven’s sake. We have a prouder democratic record than most nations, and we have always barred certain categories of people from voting in General Elections: peers, lunatics, minors and foreigners, for example.

If we wish to extend the franchise – as we did when we lowered the voting age – we should make that decision through Parliament, not in obedience to a diktat from the ECHR.

The nakedly ideological nature of the ECHR ruling can be found in its arbitrary cut-off point. It is all right, apparently, to deny someone the vote if he is serving more than four years. Why four years? Why not three? Or ten?

Barred from voting: Up to 70,000 prisoners in Britain could apply for compensation

What has happened, as so often, is that judges have ruled on the basis of what they think the law ought to say rather than what it actually says.

The European Convention was agreed after the Second World War, when genuine and massive human rights abuses were a recent memory. Its architects wanted to guarantee basic civil freedoms in countries emerging from dictatorship.

The rights it guaranteed were unexceptionable: freedom of speech, assembly and worship, no detention without due process, prohibition of slavery. Yet these broad entitlements have recently been redefined in the most exotic ways by judges who wish they had been politicians.

The will of Parliament is now regularly struck down by ideological court decisions. For example, our judges habitually overturn deportation orders. Four successive Labour Home Secretaries sought to repatriate the Afghan hijackers who arrived in Britain after diverting their flight to Stansted. Yet they are still here.

No group has been quicker to launch claims under the ECHR than convicts. They have asserted their right to fertility treatment and the right to keep twigs in their cells for use in pagan rituals. One prisoner even demanded the right – under ‘freedom of expression’ – to receive pornography in his cell, though his claim was eventually rejected.

It is striking that, when courts strike down parliamentary statutes, they invariably do so from the Left. There are howls of judicial outrage when the House of Commons sets minimum tariffs for certain crimes but no one complains about maximum tariffs.

Arrest warrants have been requested for potential prosecutions of former US Defence Secretary Donald Rumsfeld and Israeli politician Tzipi Livni, but not on Robert Mugabe or Fidel Castro. Repatriation orders are regularly overturned, but when did you hear of a judge stepping in to order the removal of an illegal immigrant who had been improperly allowed to stay in Britain?

It is hard to avoid the conclusion that human rights judges are consciously advancing an agenda they know would be rejected at the ballot box. According to the polls, three-quarters of voters dislike the idea of ballots in Belmarsh.

In a democracy, there is no dishonour in politicians doing what their constituents want. When the Prime Minister says that the prospect of enfranchising felons makes him feel sick, he is, I’m sure, articulating the view of the country.

'Brooding menace': The European Court of Human Rights in Strasbourg is hanging over the House of Commons

What makes me feel sick is not so much the prospect of prisoners voting, as the fact that our votes are increasingly worthless. Parliament is now regularly overruled by judges and Eurocrats, the act of casting a ballot cheapened.

One man is on the point of overturning the will of Parliament and people. So much for democracy. I hope our MPs will use this week’s vote to reassert their prerogatives.

I’m less interested in what they decide than in their right to decide it. After all, certain categories of prisoner – those on remand, and those incarcerated for loan defaults or contempt of court – can already vote.

If MPs want to extend those categories, fine. But they should make clear that, whatever they determine, their decision will not be subject to review by, or challenge in, any court. They should, in other words, include a clause in the statute that specifically says ‘notwithstanding any foreign treaty obligations’, thereby cutting off the possibility of litigation and compensation.

'Eurocrats': Judges in session at Strasbourg. How would the ECHR respond to the cutting off the possibility of litigation and compensation? By kicking Britain out?

How would the ECHR respond to such defiance? By kicking Britain out? Hardly. It lets Russia remain a member, despite Putin’s flagrant authoritarianism.

Instead, there would be a lengthy debate in Strasbourg about deliberate non-compliance by a member state. If no compromise were reached, the dispute would be referred to the Grand Chamber, effectively an assembly representing all signatory states. And then? In all probability, nothing: an official statement to the effect that Britain has behaved disappointingly.

There is no crisis of human rights in Europe. We don’t see internment, thank God, nor mass deportations, nor the banning of opposition newspapers, nor the arrest of dissidents.

But there is a crisis of democracy. People feel, with reason, that it no longer much matters how they vote. Power has shifted from elected representatives to unelected functionaries. Allowing yet another decision to pass from Parliament to the courts will exacerbate that crisis.

How paradoxical that, as prisoners demand the right to vote, the prize they seek is losing its value. What is the point of prisoners – or anyone else – voting if the MPs they elect are powerless?