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 disclaiming the rule of law whenever he finds it disagreeable (i.e. unpopular) makes me feel nauseous too.

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 peer Anthony Lester is one of very few parliamentarians brave enough to go against the tide of populist drivel that this issue provokes from both left and right. On the BBC Today Programme (22 Nov), he countered the standard 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 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.

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