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Sunday, April 25, 2010

Labour, Conservatives and Lib Dems fail the Hirst test

Labour, Conservatives and Lib Dems fail the Hirst test

What are human rights?

Human rights are rights and freedoms that belong to all individuals regardless of their nationality and citizenship. They are fundamentally important in maintaining a fair and civilised society.

The Council of Europe was founded to defend human rights, parliamentary democracy and the rule of law.

Article 3 of Protocol 1: Right to free elections

Elections for members of the legislative body (e.g. Parliament) must be free and fair and take place by secret ballot. Some qualifications may be imposed on who is eligible to vote (e.g. a minimum age).

In Frodl v Austria: “The Court (applying the Hirst test) observes that, while this might not be obvious from its wording, Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective democracy and is accordingly of prime importance in the Convention system. Democracy constitutes a fundamental element of the “European public order”, and the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law”.

“Free elections and freedom of expression, and particularly the freedom of political debate, form the foundation of any democracy”.

“The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a wide margin of appreciation in this sphere since there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision”.

“It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate”.

“In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1”.

“As regards the status of the right to vote of convicted prisoners who are detained, the Court reiterates that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable, therefore, that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”.

“This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual's capacity to influence the composition of the legislature, does not therefore exclude the possibility of restrictions on electoral rights being imposed on an individual who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations”.

“The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned”.

“Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings”.

“Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions”.

“The essential purpose of these criteria is to establish disenfranchisement as an exception even in the case of convicted prisoners, ensuring that such a measure is accompanied by specific reasoning given in an individual decision explaining why in the circumstances of the specific case disenfranchisement was necessary, taking the above elements into account. The principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned”.

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Anonymous said...

I think criminals lose the right to participate in democracy until they have paid their debt to society.

I also think the mentally ill, peers and the royal family do not have the the right to vote.

I just can't see your problem. If a person is convicted of a crime serious enough to warrant a prison sentence, you absolutely do not get to share in public life.

Anonymous said...

Anonymous, you are quite correct. In a fair and decent society, those who commit crimes against the person, or against another person's pride possessions, should immediately forfeit their "rights".

Prisons should offer a deterrent to all, and that should mean ABSOLUTE exclusion from the privileges of freedom, cells being little more than a room 6' x 6', with a hole for a toilet and a mattress for a bed.

Tim said...

Human rights are worth nothing unless they are universal and apply equally to all, including prisoners.

Anonymous said...

It is my "right", human or otherwise, not to be burgled, raped, assaulted, cheated, definitely not murdered.
Is it therefor not right that someone who deprives me of my rights should temporarily lose their rights.

Sean K said...

To be "human" doesn't just mean to have the biological DNA composition and other physical traits defining our species.

Other non tangible qualities ranging from the emotional, social, philosophical etc... are also intrinsically implied.

The very moment any individual willfully takes another humans right to life, they have fortified their right to be considered a human being!

Queenie said...

@ Tim
The only voice of reason on this subject. Loss of liberty is the punishment, not withdrawal of all rights to be treated as Human. Wonder why most post anonymously?

NMD said...

I must be honest and say this is a tough one for me because I like Mr Hirsts blog.

Laws are not like laws of Physics they are there to protect the innocent and to develop ways in which people cant interact with each other.

The Human rights act can be deleted as easily as it was made , unlike gravity, therefore we have the right to disagree with the laws, unlike gravity they are not an absolute.

I do not believe that prisons should be anything other than civilised , that prisoners should be treated humanely without fear of violence from anyone, but votes while they are incarcerated seems to me a bridge too far and a suitable and appropriate removal of privilege while their liberty has been removed.

Submariner said...

A convict has demonstrated clearly by his actions that he puts his own narrow interests as he perceives them ahead of those of wide society as a whole.

While incarcerated, such incarceration is not only a legitimate punishment for those crimes but also a legitimate act by which wider society may protect itself from the criminal's demonstrated anti-altruisic tendencies., ie. the propensiity for causing criminal damage to society. Withholding from the criminal the ability to damage society through the ballot box is entirely consistent with the legitimate purpose of custodial sentencing.

jailhouselawyer said...

Submariner: You obviously suffer from the Bends or have water on the brain!

Anonymous said...

Don't agree with the ECHR, we should withdraw from treaty immediately.
We could then ignore the ruling on prisoners having right to vote.

Anyone who abuses another citizens human rights should expect to forfeit their own.

Laura Jones said...

People on the side of prisoner votes keep talking about human rights being applicable to all humans, being inalienable. Those against then talk about the idea of giving up human rights once you are sent to prison. Somewhere in the communication process the side against just aren’t hearing the fundamental principle that underpins human rights. The European Convention on Human Rights was brought about to avoid the atrocities of WW2. I don’t think anyone argues that is a good thing. The Human Rights Act 1998 was put in place as ‘our bill’ the UKs own bill for our citizens to bring human rights claims to UK courts, rather than having to go to Strasbourg. The concept of human rights is that people, all people, including people who, for whatever reason, have committed a crime (from fraud, to petty theft for drug addiction, to perhaps sleeping rough and being taken in, being drunk in public, to murder) Basic rights means the fundamental cornerstones of democracy and having what is needed to survive, or not being deprived of it, and not undergoing exceptionally cruel and inhumane treatment. The idea that we can pick and choose when to apply these from these rights and to whom to apply them etc. undermines the whole idea, and renders the HRA 1998 useless.

Laura Jones said...

The people against are first of all missing a very important principle, that although is pointed out to them, they still don’t seem to be able to comprehend it as they never address it in their posts. Is prisoners voting the only part of the European ruling we should ignore? Are there others? Or is it just this one? If there are more, and even if there are not more, the very idea of being able to pick and choose renders the concept useless. This is the problem with being selective about the application of the rulings.
Secondly, what is the problem you have with prisoners voting? What exactly is the harm that will come out of it? could someone on the against side please enlighten us because it is never actually expressed in any of the forums I’ve seen this being debated.
The reasons for are clear: justice does not stop at the prison gate, prisoners should be encouraged to undertake law-abiding lives upon release and voting is an essential part of civic duty. If people serving prison sentences are conditioned whilst in prison to think that they are no longer part of society, what is the good in this? Howe will this progress our system? Why is it a good thing to treat them like they’re sub-human? I don’t see how that is useful in the long run.
I suspect the people against are under the naïve and ignorant (in the true sense of the word, not in the derogatory sense) impression that these people, because they have been send to prison, are automatically evil, disgusting, unable to ever reform their behavior. This is ridiculous because the range of offences you can be sent to prison for are so varied and so are the people who serve. For instance Stephen Fry served a prison sentence, many people who are addicted to drugs end up in prison, they are not necessarily evil, my own mother was addicted to drugs, she never stole or went to prison, but that could have been just luck, because people who become addicted to drugs sometimes do so for the same reasons as my mother, being raped multiple times and sexually abused as a child can turn one onto heroin I can imagine. Does that mean she is sub-human? I don’t think so as today she doesn’t take drugs or commit crime, not that she ever did.

Laura Jones said...

I think people often just do not think about the wider sociological issues that are going on in our country, they only think in black and white, “criminals” whatever type are not people, they don’t deserve democracy, to be considered human, they are somehow not living in the UK. But they are living in the UK, inside a prison. And isn’t the aim of the prison system to rehabilitate these people? Take people who do think they are not part of society, not bound by its rules, not involved with its legal system, shouldn’t they be encouraged to think the opposite? Otherwise, why don’t we just kill them all upon sentencing. Because it seems to me the view is that these people never come out of prison, like they just disappear upon release?
I find the attitude of a lot of people commenting on here very sad, because it really demonstrates the kind of mentality for which we punish children, that of not seeing the person, but seeing only the label they have been given. It also shows a lack of ability to understand concepts and actually answer points on which they are challenged. They just reiterate the same argument that human rights are not applicable to certain people. When the very statement is an oxymoron.
So if someone could be so kind as to actually address that, that would move the debate along.

DTL said...

This is so difficult for me. On one side I have always been against discrimination of any sort and for equality to its full extent. On the other side I believe people should be punished for their crimes and removed from contact with society if the crime is serious enough. Bearing in mind that most people in prison are in for petty crimes and non-payment of fines it seems to hold no water to stop them having the right to vote particularly when then are people that are free on license who do have the vote. In conclusion I would say the judge should make the decision to remove voting rights at sentencing if the crime warrants that decision.