Tuesday, April 12, 2011

Prisoners' voting rights and Britain's relationship with Strasbourg

Published in Criminal Law & Justice Weekly, Vol 175, 9 April 2011, p 229

Frances Crook, the (superbly named) Director of the Howard League for Penal Reform, has argued passionately on prisoners’ voting rights and the European Court of Human Rights (the ECtHR) (CL&J Vol 175, p82). Both issues, still regularly appearing in headlines, deserve further comment.

Ms Crook describes the right to vote as “fundamental”, without defining the term. Yet no-one suggests that children or the clinically insane should have the franchise. "Fundamental", therefore, cannot mean "universal".

The rationale for withholding the vote from children or the insane is that both lack the intellectual maturity to make any meaningful contribution to the democratic process. One could anticipate a chaotic result from the aggregate of their votes. Further, children acquire the vote when they become adults (as would the mentally ill if cured), so it is wrong to consider them excluded as a class.

What then of prisoners? Obviously, commission of a crime does not of itself rob one of the intellectual capacity to vote. Nor is disenfranchisement a necessary component of imprisonment. We have moved on since the days in which prison constituted “civic death”. Moreover, allowing prisoners the vote would assist them in developing the notion of participating in society, a key step in rehabilitation.

As against that, prisoners already have the right to vote – before they choose to become criminals. They will regain the right once freed. To call them “vulnerable” as some have sits uneasily with the fact that many are imprisoned to protect the public. Rehabilitation may be the ideal outcome of prison, but there has to be some element of punishment as well.

The notion of the social contract entails accepting the protection and benefits conferred by the state, but in exchange for duties on the part of the citizen. Rights should not exist without responsibilities. Foremost among responsibilities is the criminal law. Having chosen to break that law, prisoners are on shaky grounds demanding the right to have a say in making it for everyone else.

Then there is the ECtHR’s compromise in Hirst, which precludes a blanket ban but not necessarily a more limited restriction (although the ECtHR has arguably gone further since). The main point, however, is that the issue of prisoners’ voting is far from clear cut. That being so, we come to the second question, namely whether Parliament or the ECtHR should ultimately decide.

Ms Crook argues “the law is the law”: Parliament agreed to the ECtHR’s jurisdiction and is therefore stuck with it. To pick or choose which rulings to follow would clearly breach the rule of law.

With this I agree, but that is not to deny that there are serious questions about the ECtHR. Its appointments process has been criticised as too political, with some judges insufficiently experienced and some not even fluent in the relevant languages. It is also a triumph of tokenism over logic that small political enclaves have equal representation with the likes of Germany and Britain.

The ECtHR was established to be a check on national governments. But what if the ECtHR itself starts exceeding its authority, or regularly produces decisions of unacceptably poor quality? It may become so aggressively expansionist – or simply incompetent – that the UK has to leave if it is unable to persuade fellow members of the need for reform. There is already cause for concern given that the ECtHR’s critics include someone of the reputation and standing of Lord Hoffmann. A “living instrument” the Convention might be, but it should not be a licence for the ECtHR to micromanage national legal systems.

Nevertheless, those are reasons for reform, not excuses to pick and choose which currently binding rulings to follow. The fact is that Britain has to accord the ECtHR’s decisions the authority conferred by the appropriate constitutional documents which it has willingly signed, unless and until it unsigns them.

This involves some niceties regarding the doctrine of Parliamentary supremacy. As with membership of the EU itself, the most satisfactory analysis would perhaps be to say that Parliament has, for the duration of Britain’s membership, delegated sovereignty to the necessary extent, or accepted a restriction on its own powers – although it still retains the power to withdraw at any time and reassert its former constitutional position.

Currently the Supreme Court is trying to resist another of the ECtHR’s decisions in the Horncastle case. It seems improbable that it will be in a better position to do so than Parliament, but it is another indication that the controversy over Britain’s relationship with Strasbourg is set to increase.

As divisive as the issues are, one can be against enfranchising prisoners but in favour of complying with the law as it presently stands. Equally, one can be in favour of allowing prisoners to vote and of demanding reform of the ECtHR – indeed, logic suggests that the ECtHR’s supporters should also be the strongest advocates for its reform.

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