Posted by David Allen Green - 10 February 2011 13:48
Those opposed to prisoner votes are misleading the public.
Jack Straw is one of the MPs who opposes the removal of the blanket ban. Photograph: Getty ImagesToday the House of Commons is debating prisoner votes. However, many of the MPs opposing votes for prisoners are misleading the public, and perhaps even themselves, about the issue.
The European Court of Human Rights has held that a blanket ban is unlawful. The Court has not held that all prisoners should have the vote, but that there should be regard to the circumstances of the prisoner when imposing or maintaining a ban.
There is an analogy here with bail. There is no general ban on an arrested or convicted person applying for bail. It may well be refused, and it usually is in respect of serious offences, but there is no blanket prohibition. But to apply the logic of some of those MPs opposed to the UK complying with its obligations under the European Convention, the fact that bail is discretionary and decided on the merits of each case means that all arrested and convicted persons can and do get bail. Of course, this is nonsense.
The blanket ban could easily be replaced. Serving prisoners could apply for the ability to vote, and their cases dealt with according to strict criteria. A newly convicted person could be told whether their punishment includes the loss of the vote while they are in prison. Such a framework would not be expensive and would be cheaper than compensation claims. All the European Court of Human Rights requires is that each case should be considered, not that each prisoner should have the vote.
If one is cynical, however, it is plausible that some of the opposing MPs know this, as do the government. The prisoner votes issue could be a sop to the illiberal MPs for them to vent over, just as the last Labour government always used a vote to ban foxhunting as a ploy to distract MPs.
There is no need for huge compensation payments; there is no need to withdraw from the European Convention of Human Rights; and there is certainly no need to give all or most of serving prisoners the vote. There simply needs to be an end to a blanket ban, and that could be easily done.
But instead, as the legal blogger @benjaminfgray pointed out on Twitter, we have the ridiculous spectacle of MPs who supposedly believe so strongly that law-breakers should not vote that they are going to vote to break the law themselves.
David Allen Green is legal correspondent of the New Statesman.
Comment: If this is a critical and liberal look then David Allen Green is blind in both eyes.
True, MPs are being dishonest in misleading Parliament, the media and the public. However, David Allen Green is also misleading the public with this article.
The motion in the Commons was by a newly created Backbench Business Committee, set up as a result of the Tories not winning the election and part of the Coalition agreement. Basically, some Tory backbenchers felt aggrieved that some frontbench seats would be filled by LibDems and deprive some Tories of a voice.
Before being brought up by the BBBC, the issue of prisoners votes was raised by the 1922 Committee in the same secret meeting when they wanted Cameron to curb the power of IPSA to allow MPs to carry on fiddling their expenses as before.
The motion and vote in the Commons was just a sideshow, and the main event is in Strasbourg. The vote by MPs is not binding on the government whereas my case Hirst v UK (No2) is binding on the UK.
David Allen Green is misleading the public when he claims "The Court has not held that all prisoners should have the vote". He has made the same mistake as Charles Falconer did, telling the public what the Hirst v UK (No2) judgment does not say when he had not read it to see what it does say.
Article 1 of the European Convention on Human Rights states that everyone is entitled to the human rights under the Convention. It does not say everyone except prisoners or even everyone except some prisoners. Therefore, all prisoners are entitled to the vote under Article 3 of the First Protocol of the Convention. The Court did say that in the very limited cicumstances, for example, someone convicted of electoral fraud or abuse in a public office then there is a link between the crime and punishment of being disenfranchised.
The Court stated that regardless of the nature and seriousness of the offence or length of sentence, the vote cannot be removed by Parliament or the Executive. It is for the electorate to elect the elected and not the elected to elect the electorate. In those very limited circumstances when the franchise can be removed for a period, it must be done by a judge in open court.
I do not believe that David Allen Green's bail analogy is very helpful at all, if anything it only serves to confuse the confused even more.
It is sheer arrogance for David Allen Green to suggest this: "Serving prisoners could apply for the ability to vote, and their cases dealt with according to strict criteria".
Convicted prisoners do not have to apply for their inalienable human rights under the Convention. There is a requirement upon the Secretary of State for Justice to ensure that all citizens in the UK get their human rights under the Convention.
If David Allen Green was as good a lawyer as he likes to think he is he would know all this. Instead, I will remind him of the legal maxim 'ignorance of the law is no excuse'. He is just blustering his way through and hoping nobody will notice. In this sense he is no different than the MPs.
David Allen Green just makes a complete fool of himself with this: "There is no need for huge compensation payments; there is no need to withdraw from the European Convention of Human Rights; and there is certainly no need to give all or most of serving prisoners the vote. There simply needs to be an end to a blanket ban, and that could be easily done".
The time to worry about huge compensation payouts was before the 2009 European and 2010 general elections. If all 75,000 eligible to vote claimed £1,000, it would amount to £135m. If it is not sorted before May 2011 for the elections in Scotland, Wales and Northern Ireland and AV referendum then it will be £270m.
The Committee of Ministers has the power to suspend or expell the UK for non-compliance with the Hirst v UK (No2) judgment.
There is a need to give all convicted prisoners the vote as per my case, because the Council of Europe is demanding that the UK fully complies with the judgment.
The blanket ban must go and no arbitrary ban which limits the human right will satisfy the Committee of Ministers. David Allen Green states "that could be easily done". However he fails to say how. All of a sudden this so-called lawyer is short on legal advice.
The solution is easy, all Kenneth Clarke needs to do is make a remedial order under s.10 of the HRA 1998 to amend s.3 of ROPA 1983 and lay it before Parliament. Sorted. Simples.
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