Friday, 7 December 2012

Human rights, the rule of law, and British parliamentary sovereignty: Prisoners' right to vote

7 years ago the UK was found in breach of its legal obligations to uphold the European Convention on Human Rights for its blanket ban on prisoners voting (Ruling of the European Court of Human Rights).Yet the British parliament has still not managed to pass legislation to address the fundamentally arbitrary and discriminatory character of this ban, by providing a justification of disenfranchisement that relates to the nature of particular crimes and making it an explicit part of sentencing. Rather, parliament is now in open revolt against the very principle of a supra national court telling it what to do.

David Cameron, our Eton trained prime minister, has been eloquent in his philosophy of law analysis:  "It makes me physically ill even to contemplate having to give the vote to anyone who is in prison" (Hansard). Well the leader of my country running about making fatuous statements like this about the rule of law makes me feel nauseous too. But I live with it, because, you know, democracy isn't about getting everything you want. I'm surprised Cameron hasn't realised that this also applies to him. (Well, he got a first in PPE from Oxford, so presumably he just plays at being this kind of nincompoop.)

Let's turn to some of the actual arguments.

1. A foreign Court is undermining the sacred institution of British parliamentary sovereignty

No. It was the British parliament itself that signed up to this human rights convention in the first place and authorised a judicial system with the European Court of Human Rights as the highest court (1953). The unelected judges are merely doing what judges everywhere do in any country that operates under the rule of law: independently interpreting how particular laws apply to particular cases that fall within their jurisdiction and are brought before them.

One should not confuse sovereignty with degrees of freedom. Sovereignty is about autonomy, a demand that others recognise and respect that you are your own master. But that is not quite the same thing as being able to do whatever one likes, whenever one likes. For example, at the individual level, marriage is a voluntary commitment between free and equal agents which reduces their freedom to do as they please but does not reduce their autonomy one jot. Quite the reverse. The ability to make such self-binding commitments to oneself or others is at the heart of what autonomy means. Sovereign states are those that can relate to other states as equals and contract treaties with them.

Thus this is not a matter of external coercion by the Court, but of internal incoherence by the British parliament. Indeed it is most revealing of the character of that institution. It resembles the tantrum thrown by a child who ate his cake and now wants to have it back. The British parliament seems to want to be able to pass laws and at the same time retain a choice about whether or not to uphold them. In other words, it wants to issue edicts, not laws. A majority of its members thus appear not to understand what a legislature is, which makes one question their competence to be passing laws in the first place.

In any case the term 'parliamentary sovereignty' is rather misleading. Since in Britain the government is, by definition, always able to muster a parliamentary majority, what this interpretation of the pre-eminence of parliament to decide everything actually means is that the government of the day should be able to operate without any legal constraints (other than a general election every few years).

2. The British people should interpret what human rights mean, not the courts.

No. The concept of human rights refers to our belief that there are certain moral claims that all people have simply in virtue of being people. The problem with such a concept has always been that while most people can be persuaded to agree with it in principle, they will always want to make exceptions in some cases. As in, everyone can get married, except gays of course. Or, everyone has a right to practise their religion, except Muslims of course. Or, everyone has the right to a free and fair trial, except when we all know he's guilty. And so on.

The universality of the idea of human rights thus stands in conflict with the majoritarian foundation of democratic government, in which the prejudices of the majority determine how people should be treated. The executive branch, even or perhaps especially in a democracy, can be entrusted with the general promotion of the principle of human rights, but not with their case by case interpretation.

This is why realising human rights requires a legal framework and an independent judiciary to interpret them. They need to be written down so that their universality is clear. Their fundamental importance needs to be recognised by their priority over other laws. And they need to be interpreted impartially by independent judges who are 'blind' to popular prejudices about certain kinds of people.

The liberal democrat 'Lord' Anthony Lester is one of very few parliamentarians brave enough to go against the tide of populist drivel on this issue. On the BBC Today Programme (22 Nov), he trounced sanctimonious jingoism with some of the best arguments I've heard in political discourse in some time. Among other things, he pointed out that just because a law is passed by parliament and is popular does not make it right. A popular racist law is still in breach of what an impartial reading of human rights means, and what our prior commitment to human rights requires.
In 1968 a Labour government passed a law preventing brown British citizens from settling in this country. It was done in three days and nights by a huge vote of the House of Commons and the House of Lords. However, that was in breach of the convention, and even though the overwhelming majority of MPs in both House, I'm afraid, adopted a racist position, in the end, when Roy Jenkins was Home Secretary we complied. All I'm saying is that fact that there is populism about this issue no more justifies us than if it was in the Duma in Russia or in another part of Europe where they don’t obey the rule of law. [Source]

3. This kind of ruling 'trivialises' human rights

No. The right to vote can hardly be trivial when it is central to the idea of democracy (and indeed to the UK parliament's claim to sovereignty). It is a quintessential aspect of democracy that governments be held accountable to their people through free and universal elections. It follows that voting cannot be considered either as a 'civic' right handed down by parliament, or a 'privilege' of citizenship that may be removed at parliament's pleasure. The fundamental principle of democracy is that it is the voters who choose the government, and not the government that chooses the voters.

To test your preconceptions about this, consider whether it would be a trivial matter for parliament to deny political rights to another minority population, such as British Roma or Jews. (As it happens, the Court recently ruled against Bosnia for not allowing Roma or Jews to run for election.)

4. This interpretation of human rights is absolutist

No. Human rights are held by individuals over and even against the state, and therefore naturally impede the state from doing as it wishes. But this feature merely follows from what the rule of law in general implies: restrictions on the arbitrary use of political power. If the right to vote in one's own country, like freedom of speech or religion, is a universal human right then it must be acknowledged to apply equally even to those 'wicked people' who fill our rulers  or ourselves with moral disgust. Suspending or restricting such a right is a serious affair that requires an explicit justification on principled grounds, not an emotional 'yuk' reaction.

The Court challenged the UK government to identify the legitimate aim served by a blanket ban and justify its proportionality. The UK government claimed that it "aimed to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law". Rather generously, in my view, the Court respected that empirically specious claim as a legitimate instance of national autonomy. (For the record, my own view is that not only should the right to vote be considered unalienable, but that it should be extended to all long-term (i.e. non-immigrant) residents in the country). Yet the Court remained unconvinced that banning prisoners from voting in any elections that happen to be held while they are imprisoned, whether for one day or for life, met the requirement for proportionality.

That is, if depriving people of the right to vote is considered a punishment severe enough to persuade hardened criminals to mend their ways, it must also, by the same logic, be considered severe enough not to be applied willy nilly to everyone in prison regardless of the character of their crime. That seems arbitrary because it is arbitrary.

5. The decision is based on the value judgements of foreigners about the meaning of human rights.

No. The Court's decision is an eminently sensible and reasonable judgement of the legal incoherence of the ban whose logic anyone can appreciate. If one bothers to try. A good argument is a good argument, whether or not made by a foreigner. The opponents of the Court's judgement have failed for 7 years to explain why its reasoning is flawed. It seems that the rules of logic themselves are supposed to bow to the sovereignty of the British parliament.

The underlying idea that 'foreigners' are not competent to understand the concept of human rights reflects Britain's unfounded belief that is uniquely civilised. (This may well be a hangover from the delusion of cultural/racial supremacy that was an important moral rationalisation for Britain's imperial enterprise for 150 years.) In recent decades successive British governments have made human rights promotion central to foreign policy and even engaged in military adventures in its name. They preach to foreign peoples about their universal human rights, while scolding foreigners who do the same to us. The British people don't need human rights. We are already civilised. We invented parliamentary democracy. We have the Magna Carta.


***

Over 7 years the UK government(s) has refused to consider the substance of the Court's challenge and has chosen instead to characterise it as interference by foreigners with dangerous 'European' values, an assault on parliamentary sovereignty, and an outrage against the values of the British people. None of these are accurate and none of them are proper arguments. Indeed we are in the strange position of having a government that is morally disgusted by lawbreakers, while being themselves in breach of the law. We have a legislature which refuses to make the laws it has passed coherent with each other and prefers childish petulance to reason or principle.

Notes
Bagehot has a great post on this issue over at The Economist

23 comments:

  1. Let me ask a broader question which applies to this case; the government and many people have the intuition that criminals should cede their right to vote- you argued against them persuasively; however, when should we trust our intuitions in ethics? And how is that different than say the philosophy of language?

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    1. 'Yuk' is not an argument.

      We should trust our intuitions if we have reason to believe they would withstand critical scrutiny, for example in terms of their coherence with our other intuitions. One cannot both believe in the principle of human rights and that they are a matter for local politicans to decide.

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  2. I politely disagree. The most basic human right is the right to life and liberty. When we incarcerate a man we take away is liberty. When we execute him we take away his life. How can a man so incarcerated and deprived of basic rights have any other rights? I find that notion logically inconsistent. The whole point of punishment is to deprive someone of liberty. That deprivation is the punishment. Punishment is supposed to be psychologically painful in order to a, get retribution for the gratification of the wronged party, b, protect society from the criminal (even in the way they vote) and c, incentivize not coming back to prison.

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    1. Thanks for your thoughtful comment

      However, I think you have the wrong idea about how human rights work. Human rights are supposed to be moral claims that all humans have to certain kinds of treatment simply in virtue of being human. Each right is independently important and requires a separate justification to be set aside. e.g. prisoners don't automatically lose their other rights (such as not to be tortured, to get adequate medical treatment, etc) just because certain aspects of their right to liberty have been suspended.

      Anyway, the Court accepted that disenfranchisement could be imposed as part of punishment regime. Its judgement was that such a punishment should not be imposed haphazardly, merely as a biproduct of imprisonment. Presently, someone imprisoned for 3 months (or even 1 day) for a relatively minor offence might lose their right to vote if an election happened to be held in that period, while someone else imprisoned for 4 years for something nasty like GBH might not miss any elections (at least, no general election). In other words, the present blanket ban doesn't seem much related to achieving the 3 aims you identified.

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  3. “The Court's decision is an eminently sensible and reasonable judgement of the legal incoherence of the ban whose logic anyone can appreciate.”

    To the contrary I would insist that it is eminently reasonable for a country/ legislature to adopt a policy of removing the right to vote from anyone given/ serving a prison sentence, and that it is the ECtHR’s insistence that this is not a matter for the discretion of national legislatures which is incoherent.

    The underlying reason for this is that any rational person will, if they are honest, recognize that one's right to liberty is far more important than one's right to vote (i.e. to have a 1 in 60 million chance of influencing an election between 3 parties who would behave the same once elected). Given that this is so, if one is justified in depriving someone of their liberty one is justified in depriving them of the vote. On the assumption that the ECtHR would recognize that the right to liberty is more important than the right to vote, it should accept that it is legitimate to adopt a policy of depriving all those guilty of offenses sufficiently serious to carry a prison sentence of the vote.

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  4. To explain my reasoning more fully:

    The right to liberty is a hugely important human right, yet we do not consider it a human rights violation to lock people in prison after they are given a prison sentence following a fair trial. To lock someone in prison would generally be a violation of the right to liberty, but it is not if it is a justified punishment for a proven crime of sufficient seriousness to warrant a prison sentence. If a prison sentence is a justified punishment it follows that it cannot be a violation of the prisoner's right that he is held in prison. Further if one accepts that the right to liberty is more important than the right to vote then one cannot on the one hand insist that depriving someone of the right to vote is automatically a violation of their rights while depriving them of their liberty, in the same circumstances, is not (this is the incoherent position the ECtHR finds itself in).

    Part of what it means to recognize that punishment A (loss of liberty) is more harsh/ serious than punishment B (temporary loss of the vote), is that if one's wrongdoing is not sufficiently serious to render B justified/ legitimate then it cannot (logically cannot) be sufficiently serious to justify/ legitimize applying punishment A. Therefore, if we take the ECtHR seriously in insisting that a blanket deprivation of the right to vote is unjustified, and assume that it recognizes that being deprived of liberty is more serious than being deprived of the right to vote (as it must, rationally recognize), it cannot then consistently hold that a blanket policy of imprisoning all people with prison sentences is justified. This would clearly be absurd.

    On the basis of the above, the following 3 propositions cannot all be true:

    (1) Deprivation of liberty is more serious i.e. is a harsher punishment than deprivation of the vote;

    (2) It is legitimate to imprison all people legitimately given prison sentences; and

    (3) It is illegitimate to remove the vote from everyone simply because they have committed a crime justifying imprisonment.

    (1) is (I think) self-evidently true, and I don’t think the ECtHR would want to deny it. To deny (2) is inherently absurd (being self-contradictory), and (3) is the adopted position of the ECtHR, i.e. the thing they are making a point of NOT denying. My argument is that (3) cannot be true if (1) and (2) are, and so the court has adopted a contradictory position.
    
This means (given the obviousness of (1) and (2)), that it is legitimate to deprive all prisoners of the vote, in so far as it is legitimate to give them prison sentences in the first place. Note that this does NOT mean that one must deprive all prisoners of the vote, but rather it is legitimate for a country to adopt a policy of doing so, and hence that the court has no business telling any state that it may not do so.

    What the court may do is question whether certain offenses that we currently classify as imprisonable (i.e. that carry prison sentences) should do so. But if it is not doing that then it cannot reasonably hold that it is illegitimate to take away from people given such sentences their right to vote. i.e. it cannot coherently insist that it is legitimate to imprison all such people but that it is not legitimate to deprive all such people of the vote. At least, it cannot do so in so far as it accepts (as it reasonably must) that deprivation of liberty is a more serious punishment than deprivation of the vote.



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  5. Thanks, nkaplan, for your rigorous challenge.

    However it seems to me that your position rests on an intuition that is not generally shared, including by the British government in its arguments to the Court. Namely that the right to vote is trivial, perhaps on a par with the right to choose what kind of vegetables to eat or to play the lottery. This limits the scope of your argument. I can accept that sentencing people to prison implies that one can set aside their right to choose trivial things (like which vegetables are on their menu) without any further justification. But I disagree that voting falls under that category and requires no specific justification to set aside. The right to vote is not about getting what you want so much as it is about the character of the political regime you live in and your place in it as citizen or subject. As Mill put it in Representative Government,

    'Whoever, in an otherwise popular government, has no vote, and no prospect of obtaining it, will either be a permanent malcontent, or will feel as one whom the general affairs of society do not concern; for whom they are to be managed by others; who “has no business with the laws except to obey them,” nor with public interests and concerns except as a looker-on.'

    I would also like to direct your attention to the form of the Court's judgement. It accepted that Britain had the legitimate power to deprive convicted criminals of the vote as a formal part of their punishment. It merely contended that such a justification was incompatible with the arbitrariness of the present blanket ban and required that the government resolve that incoherence.

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  6. Thanks for taking the time to reply. I perhaps should not have included my somewhat tongue in cheek comment about the triviality of voting (although I am inclined to think that people do have a tendency to confuse the importance of democracy itself with the importance of the right of each individual to vote).

    I do not think that my argument rests on the assumption that voting is unimportant, or comparable to choosing one's vegetables. Rather my argument only requires that depriving someone of the vote be a harsher punishment than depriving someone of their liberty. This is not an assumption that I think could be easily challenged, and I note that you have not questioned it.

    However I do, now that I think about it, realize that there is a slight complication in that people are deprived of their right to vote IN ADDITION to being put imprison, but I don’t think this is fatal to my argument, and it is NOT the basis on which the ECtHR questioned the current position.

    I do accept that there is an arbitrary element in the current policy. However, I believe this arbitrariness solely consists of the fact that deprivation of the right to vote whilst in prison has not been specifically legislated for, and hence merely applies as a consequence of being in prison, rather than being a legally specified part of a prisoner’s punishment. This could easily be solved by introducing legislation to say that all prisoners will be deprived of the vote as part of their sentence.

    What I cannot accept is that a blanket ban per se is arbitrary. I do not think there is anything arbitrary in saying that ‘if one has committed a crime serious enough to warrant being deprived of your liberty, then you have committed one serious enough to be deprived of your vote also.’ To me this seems eminently reasonable, although I accept that it would be perfectly legitimate not to adopt such a policy also. Why is it that you disagree?

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  7. Just to expand slightly on my last paragraph. The ECtHR seems to be saying that one must specify some point at which an offence becomes serious enough to justify taking away someone's right to vote and hence that a blanket ban is not legitimate because it refuses to make any such specification and instead arbitrarily removes the vote from ALL prisoners.

    The question is, why is it not legitimate simply to specify the point at which it is legitimate to deprive someone of the vote as being the same point at which it is legitimate to lock them in a small room for a significant number of hours per day?

    This would shift the argument to the, to me much more reasonable, point about whether our current imprisonment policy is sensible, where a stronger case could be made for saying that many of the things we regard as imprisonable offences should not be so. Although if I'm honest I would be very uncomfortable about the ECtHR having any say in that regard either.

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    1. With regard to passing legislation, see section 3 of the 1983 Representation of the People Act.

      With regard to the harshness of punishment, I would accept that most prisoners who lose the right to vote would see it as relatively minor in comparison with their loss of liberty. But so what? Rights are not only important because of how particular people feel about them. Human rights law does not work within Maslow's hierarchy of needs.

      With regard to the arbitrariness of a blanket ban, I think the summary of the ECHR's judgement that I linked to puts it as clearly as I am able to. A blanket ban is indiscriminate because its effect depends on the election schedule. Depriving people of the vote is a significant act of the state to its citizens that should be taken seriously. If it is supposed to be an aspect of criminal punishment (as the UK government claimed), then it requires case-by-case justification by the criminal justice system with respect to the nature of the crime and the character of the individual concerned (just as for imprisonment itself).

      PS Of course prison is a terrible, not to mention stupid, punishment for most crimes. The British seem, like the Americans, entirely too fond of criminalising people rather than only acts. The real reason prisoners are not allowed to vote is that the idea of criminals voting makes middle-England feel physically sick.

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  8. Thank you for the reference to the statute, I hadn’t realized that such legislation was in place and had been misinformed to the contrary.

    My argument does not rest on anybody’s subjective assessment of how minor/ major their punishment is. My point is that loosing the vote is objectively a less severe punishment than loosing one’s liberty. If one accepts this one must accept that in any circumstance where it is legitimate to imprison people it is also legitimate to deprive them of the vote (although I admit it doesn’t follow that it is necessarily legitimate to apply both punishments together). It therefore makes no sense for the court to question the legitimacy of depriving certain prisoners of the vote, if it is not also going to question the legitimacy of imprisoning those same people, at least in so far as it accepts the above point about harshness.

    Surely a blanket ban is indiscriminate because it is blanket, not because its effects depend on the election schedule? Surely the fact that its effect depends on the election schedule means, to the contrary, that it is discriminate? I’m not sure this is sufficient to render it illegitimate, it is just an unfortunate result of the fact that social life is inevitably and irreducibly complex i.e. this arbitrariness is ineradicable and would apply in all sorts of circumstances and to every sort of sentence. To give just two examples which demonstrate why this is not a sufficient reason to hold a blanket ban illegitimate:

    (i) Any prison sentence carries the risk of arbitrary effects of this kind that will be of significant detriment to the person in prison. For example, for any sentence of any length there is always a risk that the person imprisoned under it will be in prison at the time when a relative dies, or at the birth of their child or some other significant moment in their life. For people in such circumstances the sentence will be disproportionately and arbitrarily harsh in its effects relative to others with the same length of sentence served at a different time. But that does not render the sentence illegitimate, it is just unfortunate for them but irresolveably so.

    (ii) The ECtHR seems to accept that it would be legitimate to specify that anyone given a 4 year sentence could be deprived of the vote. But our electoral cycle can run for up to 5 years, therefore it seems that they do not have an in principle objection to such arbitrary effects because they seem to allow the same effects to occur in slightly different circumstances. The policy they recommend is thus merely a difference of degree and not of kind.

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  9. I agree that depriving people of the vote is significant. I do not agree that it needs case by case justification. Even if you do not agree, I don’t see how you can consider it unreasonable to believe that if someone commits an offense serious enough to justify imprisonment then they have also committed an offense serious enough to justify removing the vote from them. Since this is not an unreasonable position (even if it is ultimately not ideal or correct), it should be within the limits of the discretion of a national legislature to adopt the following policy: the point at which a person should (temporarily) loose the vote is exactly the same point at which they should be put in prison.

    In any event, so long as imprisonment itself is decided on a case by case basis (as it typically is, although not for certain serious crimes like murder which carry mandatory sentences - the legitimacy of which has not been question, which itself raises questions about the sincerity of the court on this point) then deprivation of the right to vote is also determined on a case by case basis i.e. by deeming a particular offender deserving of a prison sentence the judge thereby deems the offender deserving of loosing the vote. Thus the judge has sufficient discretion in being left to determine whether or not to give a prison sentence in the first place.

    I’m not sure what you mean when you say that the British are too fond of criminalizing people rather than acts. Surely we do only criminalize acts (by specifying that certain acts, not categories of person) are criminal? It is people who criminalize themselves by doing those acts that have been classified as criminal.

    I don’t think it is appropriate for you to so loftily dismiss the views of the vast majority of Britons by saying ‘the real reason prisoners are not allowed to vote is that the idea of criminals voting makes middle-England feel physically sick.’ Are you not just assuming people have no good reason for feeling this way about prisoners being able to vote, and isn’t this (i.e. that there is no good reason) the very thing which you are required to prove but have not yet demonstrated?

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    1. I think we are going around in circles. You admit you see no good reason to deprive prisoners of the vote but continue to assert the reasonableness of doing so (which I disagree with because I think the vote matters).

      Recall that my actual blogpost is concerned with the judgement of the Court and the British government(s)' reaction to it. That is where the charge of incoherence comes from and is deserved.

      With regard to national legislatures' supremacy, you haven't engaged on whether they should really be supreme on human rights issues, given that the intentions of setting up the Court in 1953 (pushed by that super nationalist Winston Churchill among others) were exactly to make the actions of European governments subject to a higher standard of impartiality and decency. I want a Court that can tell Bosnia to revise its constitution to allow Jews and Roma stand for election. I want a Court that can tell the British legislature to treat voting as a right not a privilege. I cannot trust a popular institution like parliament to do what's right.

      With regard to your examples
      i) Interestingly, like the right to vote, the right to family life is considered distinct and not subsumed away by the legitimacy of incarceration itself. So prisoners have the right to contact with their family members and loved ones (in part because of previous Court rulings).
      ii) The Court did not specify exactly what the British government should do. But it would appear consistent with their reasoning to make any deprivation of the vote for punishment purposes in terms of election cycles rather than years.

      Criminalisation is the characterisation of law-breakers as criminal types. That seems to be how both Labour and the Conservatives view convicted prisoners - as wicked people who do not deserve the vote. As usual the Liberal Democrats are about the only voice of principle in the debate. As usual in Britain, they get only scorn for it.

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  10. Apologies in advance for another lengthy response split across posts, but these are complicated issues and deserve full consideration.

    I don’t think we are going round in circles, rather you keep missing my point (I’m not sure why because I have made it clearly but you seem instead to want to attribute views to me that I do not have e.g. that the vote doesn’t matter (largely my fault because of earlier sarcasm) and that a prisoners subjective assessment of the worth of his vote somehow justified the removal of it).

    I do not recall ‘admitting’ that there is no good reason to deprive prisoners of the vote and this is not what I think. Rather, I think that there are many good reasons to do so e.g. it seems to me perfectly legitimate, as part of separating prisoners from society in order to punish them to deprive them of the vote. Furthermore, if people are incapable of governing themselves to the minimal extent of staying within the criminal law, I see no reason why they should be allowed to continue to have a say in what those laws are, or in setting the laws which govern the rest of us. Of course these reasons, and any others that might be given, will not convince everyone, but they should be enough (together with my earlier arguments) to show that it is not unreasonable to deprive prisoners of the vote (even if others may have good reasons to disagree). Since it is within the realms of reasonableness it should be within the discretion of a national legislature to adopt such a policy.

    Since this is not complicated and since you are clearly intelligent I do not understand why you seem unable to appreciate it, perhaps it is because you don’t want to.

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  11. I do not see how the government has been incoherent, although (like most politicians) they have been more than a little crass. I have given detailed reasons for thinking that the ECtHR has been instead.

    As to supremacy. Never in any piece of legislation has the ECtHR been made supreme. It is a long standing tradition and legal principle in the UK that parliament, not the courts, are supreme. There is perhaps one exception to this which is with regards to the EU and its legislation. But as supporters of both the EU and ECHR never cease of telling the rest of us, the EU and the ECHR are not the same. There is therefore no good reason to assume that the ECtHR has any supremacy over parliament, indeed many of the provisions of the HRA 1998 went a long way to avoiding making this so. Moreover in a country with long and proud history of Liberty and support for procedural and other individual rights, I see no reason why the ECtHR should be supreme. I see no reason to believe that judgements of the ECtHR would be any better than judgements of our own Supreme Court dealing with our own Bill of Rights were such to be introduced. Indeed such a policy has gained the support of impressive and liberal judges such as Lord Hoffman.

    Perhaps it would be best for Bosnia to have such a court, but I do not think that Britain has any need of one. Indeed I see an inherent danger of a court such as the ECtHR making judgements clearly beyond its remit on issues that ought not to be any of its concern, which is likely to lead to popular frustration with the very concept of rights as a whole. If we are to have such a court it should clearly be dealing with issues that are of major significance such as imprisonment without trial, or the politically motivated destruction of parties rivaling a governing party (i.e. the kinds of things the court was set up to prevent). It ought not to be interfering in technical matters of policy about the precise point at which you can deprive someone of the vote as part of a legitimate punishment.

    Ultimately this seems to be a ‘quis custodiet ipsos custodes?’ sort of issue, and I see no reason to suppose that the ECtHR would make a better guard of these sorts of matters than the combined forces of Parliament and the British Judiciary acting under a doctrine of the separation of powers. You may not be able to trust parliament to do what is right because it is a ‘popular institution’ (who has the problem with democracy now?), but I see no reason to assume the ECtHR is any more likely to be right. What we need is a balance of powers, this is sufficiently provided by the mix of institutions we have in Britain, the ECtHR is an unnecessary and, because increasingly unpopular, increasingly dangerous institution.

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  12. I’m confused by your suggestion that voting is being treated in Britain as a a privilege not a right. On what basis do you think this? I can only assume that you think that if the vote is capable of being removed from someone it is a privilege and not a right. But if this is so, then the ECtHR (which you are keen to defend) also thinks of voting as a privilege and not a right, it only disagrees about the precise point at which this privilege may legitimately be removed. Moreover, since the ECtHR does not question the legitimacy of imprisonment are we to infer that it regards liberty as a privilege and not a right also?

    Of course the ECtHR doesn’t regard either of these things as privileges, and neither does Parliament, rather both these institutions clearly accept that both of these are rights but that they may be removed as part of a punishment for sufficiently serious crimes. They merely disagree over the point at which a crime is sufficiently serious. That is a reasonable disagreement, but not one that justifies the interference of the court with a democratically elected government, operating under the rule of law and constrained by an imperfectly realised separation of powers.

    I do not see what is wrong with regarding certain people who commit certain crimes as wicked for having done so, many of them are. To deny this is to take the patronizing, illiberal and non-humanist view that such people are not responsible for their actions; it comes as no surprise to me that this is what the (Il)liberal democrats think. Of course not all of them will be wicked, but many (most?) of those in prison will at least have done wicked things. If people have done an act sufficiently wicked to justify imprisoning them I see no reason why they should not also be punished by loosing the vote (I certainly think it within the realms of reasonableness to adopt such a policy). Of course that does leave the (possibly large) number of people who shouldn’t be imprison at all because what they have done is not sufficiently wicked to justify such a sentence. This is where your focus should instead be.

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    1. We are not managing to get through to each other so I'm going to draw a line here. Readers can follow our arguments for themselves.

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  13. Drawing a line seems like a sensible suggestion.

    However I wouldn’t want to let pass your comment that “we are not managing to get through to each other,” which suggests that there is some kind of mutual lack of understanding. I have addressed each of your responses and the arguments you make in them, you have not addressed the central thrust of my argument at all.

    Nonetheless thank you for taking the time to respond, it’s more than many bloggers do!

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  14. Hello, I agree that the law should be able to deprive all prisoners of the vote. Those convicted of crimes worthy of a prison sentence are often pretty bad. The UK bends over backwards to avoid sending convicts to prison if it can (yes, despite the total prison population). Therefore those deprived of liberty and the vote, have committed crimes far worse than many offenders.

    Also, UK constituencies are pretty small. A large prison, would have a population bigger than any council ward area. I doubt many would welcome a situation where prisoners would determine the local councillor? but let's not get bogged down in practicalities.

    The UK is different from countries with written constitutions and the E Convention on HR is like a super appendix of a constitution. Unlike the American one, this one can't be changed at all by the UK government. If laws are not to be imposed undemocratically, the UK government has to be able to enact laws that deal with the concerns of the UK people.

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    1. You haven't actually addressed the argument of my post. The Court didn't say that the UK couldn't deprive prisoners of the vote, only that it had to provide a coherent justification for such an action. The idea of human rights is intimately linked with the demand that those with power adequately justify their actions, a requirement that is hardly inconsistent with national sovereignty. Yet I have not found such a justification in the discussion of this issue (or in the comments this post has received). Just repetition in different ways of Cameron's sense of physical illness at the prospect of the wrong kind of people having political rights.

      NB For the record, the US government cannot change its constitution as it pleases. Nor is the European Convention (which resembles a bill of rights rather more than a constitution) immutable. It has been amended several times, subject to ratification by member states.

      Also, your practical problem isn't particularly problematic (e.g. remand prisoners can vote, and do so in the constituencies where they were originally registered).

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  15. I think we have missed something very important: the margin of appreciation. which has been present in much of the jurisprudence of the court and is now incorporated into the preamble of the agreement. According to state parties have a scope for maneuver. That would allow prisoners voting prevent as many countries do.

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    1. No, I didn't miss that and neither did the Court in its judgement.

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  16. Yes it did, but not mean it. That's why now they made the protocol n°15 that includes the margin of appreciation in the preamble. The Court reconize the mistake.

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