Votes for prisoners


by Rumbold
11th February, 2011 at 10:04 am    

A backbench ‘revolt’ (encouraged by some ministers) has seen the Commons vote down plans to give prisoners the vote. This is in contrast to a ruling by the European Court of Human Rights in Strasbourg, which argued that the ban was against the European Convention on Human Rights. The government now has until August to put forward proposals to enfranchise some, or all, prisoners, or face heavy fines.

Politicians who support votes for prisoners don’t tend to win widespread public acclaim for their stance. The majority of the public don’t think people who go to prison should be able to vote. In many ways, this is understandable. If an individual commits a crime serious enough to warrant a custodial sentence, then why should they continue to enjoy the right to influence the democratic process? Nor has the campaign hasn’t been helped by its unpleasant leader, John Hirst, a cold-blooded killer who recently branded one of his critics an ‘ugly Paki’ for disagreeing with him, noting that “unlike the foreign import Patel, I am a Brit born and bred.”

Yet there are also arguments for giving prisoners the vote too. Most European countries tend to do so, or else have a tiered system, where prisoners who have committed certain offences are able to vote. Just because someone goes to prison and is deprived of the liberty, it doesn’t mean we strip them of all their other rights (for example, the right not to be tortured). It has been argued as well that disenfranchising prisoners make it harder for them to reintegrate into society, as they have less connection with everyday life. Nor does having an odious spokesman doesn’t make a cause less just.

Fundamentally though, it is unclear how much practical impact such a change would have. If 80,000 prisoners were eligible to vote in 600 constituencies, and 50% of them exercised their right to vote, then each constituency would see between 60-70 votes from prisoners. This might be able to tip the balance in a very tight constituency, but politicians could hardly lobby prisoners for votes, as the backlash from other voters would be massive. Nor would all prisoners vote for one party. So the question then becomes a philosophical one: whether or not we as a society think it is right that people sent to prison should be able to vote?


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  1. sunny hundal

    Blogged: : Votes for prisoners http://bit.ly/gn7syc


  2. Beatrice Berwing

    RT @sunny_hundal: Blogged: : Votes for prisoners http://bit.ly/gn7syc


  3. Votes for prisoners | Pan Heads and Dead Heads Rock On

    [...] Source: http://www.pickledpolitics.com/archives/11761 [...]




  1. Awakening Tempest — on 11th February, 2011 at 10:51 am  

    I think its Ludicrous to give prisoners powers to vote – let us not forget that prisoners are in prison for a ‘particular crime’, such demands lead to another demand and then another – before we know it Prisons will become less prisons and more social-criminal-voting-institution where leaders of different political parties will be giving prisoners favourable treatment to win their votes.

    The time and investment being spent to make a case for this ludicrous project can be better spent in address concerns of real people, people who refrain from criminal activities – lets look at NHS, Public Transport, Education, Elderly and so on.

  2. Tim Sowula — on 11th February, 2011 at 10:59 am  

    Having worked in HMP Wandsworth on a rehabilitation project, I have seen first hand how difficult it is to reintegrate inmates.

    Fundamentally, do we as a society want prison to be about punishment or rehabilitation. If we want our society to improve, surely it should be about rehabilitation for all but the very worst sociopaths.

    As it’s been shown, inmates can have very little influence on the democratic process – could be pointed out that people without convictions have very little influence! So it’s about a principle.

    The majority of prisoners have already suffered from being ‘let down’ at best, by state services – education, health-care, social services. Many have been abused. Allowing prisoners to vote is a sign that they’re still valued by society, they can still be included, they matter to us. Denying voting rights is just another way of throwing away the key.

  3. Sarah AB — on 11th February, 2011 at 11:08 am  

    I find it difficult to feel terribly strongly about this issue (the issue of sovereignty, which it’s sparked off, seems the more interesting angle.) But I think if prisoners had always had the power to vote I wouldn’t have thought much about it – but might have found it sininster had it suddenly been taken away from them.

  4. MaidMarian — on 11th February, 2011 at 11:13 am  

    OK – I am more pro-European than most, but this does really show up the problems with the ECHR and the court. Originally, this was intended to be a court for nothing but the most serious violations of rights. It however now has a backlog of 140,000 cases showing just how much of a forum for legal activism it has become. Almost every area of law now has to be run by this court which is wholly free from any sort of political scrutiny.

    Which is the second point. Human rights were always meant to be subject to political debate. They were never meant to be ‘above’ anything because anyone who polices human rights necessarily has a political power to place his view above that of others. This is why the US Supreme Court is essentially politically appointed. The ECHR makes judges accountable to none. It is power without any sort of responsibility.

    And lastly there was never meant to be any uniformity across Europe – the doctrine of a margin of appreciation was explicit. The argument, they do X in Y counrty therefore country Z must also do X is wholly outside any notion of what this court was supposed to do. Try this – In Germany they have severe restrictions on the building of mosques, therefore we should equalise our laws to German standards. See how that flies with the HR crowd.

    Indeed, the current case might make more sense if the argument was that the man in question is a political prisoner being denied rights due to a politcal motivation – he is making no such argument. There is a better argument to be made that there is no UK legislation stopping prisoners from voting, it is a piece of state administration – but that is a another story.

    This is a philosophical question, but not one about the treatment of prisoners.

  5. skidmarx — on 11th February, 2011 at 11:21 am  

    Among Maid Marian’s points it should be remarked the the denial of the ability of prisoners to stand for election was specifically to disenfranchise Northen Irish Republicans who had elected Bobby Sands.
    I’m not sure I can agree with much of what she says. There’s a backlog – so governments should stop violating our rights. Human rights are meant to be for political debate – I’d think they are supposed to form a background
    to it, but not be the target of every headline chasing populist.There are differences across Europe – then let’s have the best.

  6. MaidMarian — on 11th February, 2011 at 11:27 am  

    ‘Among Maid Marian’s points it should be remarked the the denial of the ability of prisoners to stand for election was specifically to disenfranchise Northen Irish Republicans who had elected Bobby Sands.’

    No – this goes way, way back. As I said, this argument might stand up if the bloke was arguing he is a political prisoner. He is not.

    ‘I’m not sure I can agree with much of what she says.’

    I’m male.

    ‘There’s a backlog – so governments should stop violating our rights.’

    No – the court can stop expanding its remit and centralising power.

    ‘Human rights are meant to be for political debate – I’d think they are supposed to form a background
    to it, but not be the target of every headline chasing populist.’

    Yes and political debate carries with it political restraint. This court is unrestrained. Human rights necessarily conflict and are qualifies. That is a matter for voters, not judges.

    ‘There are differences across Europe – then let’s have the best.’

    Define best in the context of 47 different countries and cultures.

  7. cjcjc — on 11th February, 2011 at 11:31 am  

    “The majority of prisoners have already suffered from being ‘let down’ at best, by state services”

    Oh the poor little babies.

    Still I possibly agree with your conclusion.

    Though it should be a decision for Parliament.

  8. Kismet Hardy — on 11th February, 2011 at 11:59 am  

    Why shouldn’t prisoners have the right to vote? They commited a crime (and if you’ve visited a women’s prison, I have, it’s not a pervy story sadly, the inmates there certainly include many a scary wifebeater-killer, but then there are ones that made ends meet through drugs and, in many cases, did nothing more fearsome than nappy shoplifting), but the point is they are in prison to pay for their crime. That’s punishment for them, justice for society. They still have rights and a say in how the country is run for when they return as a reformed member of society.

    If there was a Kill and Rob People Party and harderned criminals were allowed to vote for them, then there’d be a point to this outrage, but there isn’t. And the whole ‘once a criminal always a criminal throw away the key’frothing is all well and good for paedos and rapists, but it flies against our sense of justice not to accept a crime paid for behind bars is punishment enough

  9. ukliberty — on 11th February, 2011 at 1:21 pm  

    MaidMarian,

    It however now has a backlog of 140,000 cases showing just how much of a forum for legal activism it has become.

    …or that over 100,000 people are taking the Russian Federation to court for allegedly abusing their rights.

    Almost every area of law now has to be run by this court which is wholly free from any sort of political scrutiny.

    Not true, politicians approve the appointments – something that people have criticised.

    And lastly there was never meant to be any uniformity across Europe – the doctrine of a margin of appreciation was explicit. The argument, they do X in Y counrty therefore country Z must also do X is wholly outside any notion of what this court was supposed to do.

    Not true, the margin of appreciation is usually paid great heed. But they aren’t inclined to allow for margin of appreciation if there has been little or no debate and no statutory footing for the law.

    The essence of the case is that the government must justify any interference with a right where justify does not amount to “just because”. And instead of dealing with that – instead of having proper Parliamentary debates, putting it on statutory footing etc – our leaders kept putting it off (for six years!) and simply whinged about being overruled by Johnny Foreigner. It’s pathetic, it really is.

  10. ukliberty — on 11th February, 2011 at 1:24 pm  

    I’d like to echo Unity, elsewhere:

    “As regards some of the ad hominem comments directed towards John [Hirst], some people would do well to consider that he has Asperger’s syndrome and, as such, his lack of social skills and inabilty to empathise with others is only to be expected.”

    Play the ball, not the man.

  11. MaidMarian — on 11th February, 2011 at 1:53 pm  

    ukliberty –

    ‘…or that over 100,000 people are taking the Russian Federation to court for allegedly abusing their rights.’

    It is true to say that a lot of the cases are on one country. Strange that Russia is, according to internet orthodoxy, the land of milk and honey. However the court is now routinely seen as a court of last resort, it was never intended as such. Unless, of course you think that institutional overspill like this is a good thing for democracy?

    ‘Not true, politicians approve the appointments – something that people have criticised.’

    Yes, however the ECHR is not subject to any sort of restraint, as say the US Supreme Court is. This is power without responsibility.

    ‘Not true, the margin of appreciation is usually paid great heed. But they aren’t inclined to allow for margin of appreciation if there has been little or no debate and no statutory footing for the law.’

    Cobblers. The court has overruled national authorities on immigraton cases, whether crucifixes can be in schools any number of others that are simply not the ECHR’s business. The margin of appreciation was to ensure that only the most very serious cases came before the court. What the court has done is expand by stealth.

    ‘The essence of the case is that the government must justify any interference with a right where justify does not amount to “just because”. And instead of dealing with that – instead of having proper Parliamentary debates, putting it on statutory footing etc – our leaders kept putting it off (for six years!) and simply whinged about being overruled by Johnny Foreigner. It’s pathetic, it really is.’

    You misunderstand my point. Restrictions on prisoner voting should be on a statutory footing. It is not however for judges to say what those statutes should say.

    ‘aspergers’

    Aspergers does not abrogate anyone of responsibility.

  12. ukliberty — on 11th February, 2011 at 2:18 pm  

    MaidMarian,

    Strange that Russia is, according to internet orthodoxy, the land of milk and honey. However the court is now routinely seen as a court of last resort, it was never intended as such. Unless, of course you think that institutional overspill like this is a good thing for democracy?

    I don’t understand this paragraph. For a start it was my understanding that human rights organisations are very critical of Russia.

    As to the Court, of course it’s the court of last resort. The appellant (generally) has to exhaust his domestic system before he can get there.

    The number of cases before it doesn’t tell us anything other than it has a huge workload. You have to look at the cases, the circumstances, to reach any reasonable further conclusions.

    Restrictions on prisoner voting should be on a statutory footing. It is not however for judges to say what those statutes should say.

    They haven’t! All they have essentially said is, “you can’t disenfranchise prisoners ‘just because’, you have to have good reason”. What is wrong with that?

    As to the margin of appreciation:
    The Court accepts that this is an area in which a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on prisoners’ right to vote can still be justified in modern times and if so how a fair balance is to be struck. In particular, it should be for the legislature to decide whether any restriction on the right to vote should be tailored to particular offences, or offences of a particular gravity or whether, for instance, the sentencing court should be left with an overriding discretion to deprive a convicted person of his right to vote. The Court would observe that there is no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners. It cannot accept however that an absolute bar on voting by any serving prisoner in any circumstances falls within an acceptable margin of appreciation. – Hirst v UK

  13. MaidMarian — on 11th February, 2011 at 2:34 pm  

    ‘As to the Court, of course it’s the court of last resort. The appellant (generally) has to exhaust his domestic system before he can get there.

    The number of cases before it doesn’t tell us anything other than it has a huge workload. You have to look at the cases, the circumstances, to reach any reasonable further conclusions.’

    Yes – but it was never the intention for it to be used in the way it is now being used. It may well be that that some cases are reachy (indeed the ECHR has a high rate of dismissals) but the very fact that it is being perceived as it is being is a problem.

    ‘They haven’t! All they have essentially said is, “you can’t disenfranchise prisoners ‘just because’, you have to have good reason”. What is wrong with that?’

    OK – for a third time. Nothing is wrong with that, but they should not be demanding that there be no absolute bar, as your quote demonstrates. What that effectively says is, ‘we appreciate that there is a margin of appreciation – having paid lip service to it we are now going to say no to an absolute bar.’

    Regardless, I will leave the last word to you.

  14. ukliberty — on 11th February, 2011 at 3:04 pm  

    MaidMarian,

    Yes – but it was never the intention for it to be used in the way it is now being used. It may well be that that some cases are reachy (indeed the ECHR has a high rate of dismissals) but the very fact that it is being perceived as it is being is a problem.

    AIUI the intention of creating the Convention was for signatories to adhere to it and the Court for people to seek to enforce their claims against signatories they think aren’t adhering to it – it seems odd to complain that people are actually doing this. Who knew that Russia, being a signatory to this and other treaties on rights would continue to abuse rights…?

    OK – for a third time. Nothing is wrong with that, but they should not be demanding that there be no absolute bar, as your quote demonstrates. What that effectively says is, ‘we appreciate that there is a margin of appreciation – having paid lip service to it we are now going to say no to an absolute bar.’

    When someone is convicted of an offence, a number of elements are available to the court in disposing of the sentence. I cannot think of a single objective that is met by withdrawing the right to be registered to vote and to vote. It is clearly not a deterrent; I do not see that it is a punishment; I do not see that it helps rehabilitation; and I do not think that it is much of a penance either. The question is, therefore, why do we do it?Peter Bottomley, yesterday in the Commons, in an otherwise largely stupid debate

    In general you can’t have a blanket and indefinite interference with a right especially if there is no statutory footing – this results from the very principle behind them, that (in general) any interference must (1) serve a legitimate aim (2) be necessary and (3) be proportionate (go no further than necessary).

    The margin of appreciation varies in width (in terms of torture there is no margin) – the Court did say that “It cannot accept however that an absolute bar on voting by any serving prisoner in any circumstances falls within an acceptable margin of appreciation” but you never know, if someone bothers to come up with an answer to Bottomley’s question the Court might change its mind – they have before. Thing is, though, that it’s been six years since Hirst and AFAICS no-one has.

  15. ukliberty — on 11th February, 2011 at 3:07 pm  
  16. ukliberty — on 11th February, 2011 at 3:21 pm  

    Sorry – just listening to last night’s Question Time, and heard Jacqui Smith admitting that her government “kicked this into the long grass” and she thought that was the right thing to do. But as Francis Maude said, “sooner or later the grass gets mown”.

    Shocking but not surprising that a former Labour Home Secretary thinks it’s OK to ignore judgements and procrastinate and leave the crap for someone else to clear up.

    Oh and her claim that her government abided by all the other judgements that went against the UK was bullshit.

  17. damon — on 11th February, 2011 at 3:31 pm  

    Is it just a vote that they are to get? Just another bit of post that they can act on or not, or is there also the demand that they have the right to be informed of what is going on in any particular election, and that the prison makes a bit of a fuss about it? With prisoners being allowed to hold meetings and canvas other prisoners?

    My initial reaction was to think that they shouldn’t have a vote while in prison, but it’s not such a big deal either way.

  18. ukliberty — on 11th February, 2011 at 4:17 pm  

    I think it’s just a vote, damon.

  19. Olivia — on 11th February, 2011 at 5:01 pm  

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  20. Scooby — on 11th February, 2011 at 5:04 pm  

    But how can they adequately exercise their right to vote without the chance to be informed of, and take part in, the political process leading up to an election? Obviously they will need to have access to televisions, possible late at night, to watch party political broadcasts. And they will need to be able to attend hustings and ask candidates questions.

    I wonder if the liberal left has really thought this through. After all, if there was one section of the population that would keenly support proposals for eg. the physical castration of rapists and child molesters, it’s the macho lag in pokey, of whom John Hirst strikes me as a typical example. Quite an amusing and enlightening article on the real views of prisoners can be found here, in fact.

  21. ukliberty — on 11th February, 2011 at 5:21 pm  

    Scooby,

    But how can they adequately exercise their right to vote without the chance to be informed of, and take part in, the political process leading up to an election? Obviously they will need to have access to televisions, possible late at night, to watch party political broadcasts.

    Prisoners already have access to TVs.

    And they will need to be able to attend hustings and ask candidates questions.

    Based on the judgements ISTM we don’t need to allow that.

  22. Neil Harding — on 11th February, 2011 at 5:37 pm  

    It is very easy to understand how the press can easily wind up the public on this. For such a ‘nothing issue’ politicians are rightly wary of making the case for prisoner voting, but there is a strong case.

    Yes, we all think prisoners should be punished, especially violent criminals or sex offenders, but who are we really punishing by denying them the vote? Voting is a DUTY as well as a right.

    The funny thing about voting is that it is more important for society than it is for the individual who gets very little out of it (if anything) when you think about the chances that any one vote might make a difference to the result.

    In fact under our present system the vast majority of voters have ZERO impact on the result in return for quite a bit of effort.

    And as someone has already said, there is unlikely to be even one seat where prisoners will change the result (and only then from one most popular candidate to the next most popular that has been voted for overwhelmingly by non-prisoners).

    So there is no actual practical harm to our democratic process. There is however potential harm to our society by denying the vote to people.

    What we are effectively saying to someone denied the vote is that they are a ‘non-person’, their opinions are not important. This is dangerous and obviously makes rehabilitation more difficult.

    Then again I’m not that bothered either way if truth be told and can’t understand why anybody is so worked up about it all. Maybe that is the most powerful argument for giving them the vote, certainly preferable to paying them compensation or pulling out of the Euro convention on Human Rights don’t you think. People need to put things in perpsective and respect those MPs who vote for prisoners voting on principle

  23. joe90 — on 11th February, 2011 at 5:38 pm  

    Well the prison system is clearly not working you can get drugs, alcohol, video games, mobile phones and of course the complimentary free training course on how to be a better criminal. So what difference will it make if they get a vote as well.

  24. Scooby — on 11th February, 2011 at 5:38 pm  

    Prisoners already have access to TVs.

    Yes, but they can’t watch at any time they like, only during “association”. Will TV hour be extended to cover party political broadcasts and Question Time? That seems to be on the box long after prisoners are tucked up in their bunks with the lights out, you know.

    Based on the judgements ISTM we don’t need to allow that.

    The right to vote for the candidate of your choice is meaningless if you cannot find out what that candidate believes and will enact on your behalf. Will canvassers be expected to walk the hallways of Cell Block D slipping manifestos under cell doors?

  25. Scooby — on 11th February, 2011 at 5:41 pm  

    Then again I’m not that bothered either way if truth be told and can’t understand why anybody is so worked up about it all.

    Never underestimate the insatiable appetite for liberals to believe that society is fundamentally unjust, even if it means championing the most absurd of causes.

  26. ukliberty — on 11th February, 2011 at 6:15 pm  

    Scooby, the right to vote isn’t an absolute right. I find it odd that so many people insist on jumping from one extreme to another – introducing false dilemmas and suchlike.

    By all means speculate away about how late they will be allowed to stay up to watch party political broadcasts – I didn’t realise these were only broadcast after lights out – but it seems absurd to be concerned about whether prisoners will be released to pop down to their constituency community centres.

    The right to vote for the candidate of your choice is meaningless if you cannot find out what that candidate believes and will enact on your behalf. Will canvassers be expected to walk the hallways of Cell Block D slipping manifestos under cell doors?

    Apparently, prisons have libraries – I see no reason why manifestos and pledge cards can’t be made available in them.

  27. ukliberty — on 11th February, 2011 at 6:23 pm  

    scooby,

    Never underestimate the insatiable appetite for liberals to believe that society is fundamentally unjust, even if it means championing the most absurd of causes.

    I know! So absurd of liberals to (1) demand a justification for an interference with a right and (2) that we abide by treaties we have signed or exit them.

  28. turnip — on 12th February, 2011 at 1:55 am  

    Ignore Scooby, he’s a grade A troll.

  29. Random63 — on 12th February, 2011 at 11:07 am  

    I think there are two issues here which need separating:

    1) Should prisoners have the right to vote

    2) Should the European Court of Justice have the right to decide what the laws concerning prisoner voting are in the UK

    Issue 1 should be in my view resolved via the democratic process. If the majority of people do or do not want them to vote, then that should be the stance.

    Issue 2 causes me concern. We effectively have the European Court of Justice deciding policies in the UK, when the judges of that court are not democratically elected, and are not accountable to the citizens of the UK. Those judges are currently in a legal position to overide democratic decisions made in this country by our elected politicians.

    The main problem to me here is therefore not the issue of prisoners getting the vote (as noted above, this is unlikley to swing the electorial voting results much), but rather that the EU is in this instance being inherently undemocratic, and self determination seems to be being cast aside.

  30. ukliberty — on 12th February, 2011 at 4:13 pm  

    Random63,

    2) Should the European Court of Justice have the right to decide what the laws concerning prisoner voting are in the UK

    I think you mean the European Court of Human Rights.

    And it hasn’t, won’t and can’t decide what the laws are in the UK.

    It can say what they shouldn’t be, but that is not quite the same thing.

  31. Random63 — on 13th February, 2011 at 12:10 am  

    UK Liberty

    Yes, you’re quite right, I meant the European Court of Human Rights. I misread Rumbolds article above.

    As for the setting of laws in the UK, you are correct that the European Court of Human rights cannot directly pass the laws for this country, but the point I was trying to make is that if we do not follow the guidelines they have set on this issue, then this country will be subject to compensation claims by prisoners being denied a vote. Therefore, undue pressure will be put on our Parliament to go along with the proposals, even if the majority of the people don’t agree with them.

    So the European Court of Human Rights in effect does have more clout than just deciding what the laws should be. Ignoring their rulings does have financial and political consequences which are difficult to ignore. So it can be argued that they are effectively in a position to determine what our policies will be, just indirectly through fines and setting up possible compensation claims, as opposed to setting our laws directly.

    And as the European Court of Human Rights is not accountable to the voters in the UK (though they don’t seem to have any trouble deciding who can vote in the UK), then this is a set up which makes me uneasy as it is very undemocratic.

  32. douglas clark — on 13th February, 2011 at 12:47 am  

    Random63,

    I think there is a discussion worth having here, and I’m not sure whether we’d agree or not.

    The US takes the model, correct me if I am wrong, that some things are indivisible, and that includes their constitution. It appears to be their view that Judges should defend the constitution – after all it is was what they fought and died about – over politicians rights to modify the document. Whilst it has to’ed and froe’d over the years that is still the principle, is it not?

    The UK takes the model that, correct me if I am wrong, it signs up to a voluntary agreement that the ECHR has final say in matters of human rights and somesuch? Would that be right? Is that what we did?

    Well, yes it is.

    And then on issues that offend us we run away from something we subscribed to because it was right that certain issues should not be within the purview of cheapskate politicians that we can influence by jumping up and down and being, well like a shower of wains in a playground.

    Is that what you want?

    It is beyond my understanding how you can agree to a principle and breach it for an accomodation to political expediency.

    You are really not serious about law nor human rights, seems to me.

    Cheap, cheap politics…

  33. Refresh — on 13th February, 2011 at 6:01 am  

    What a storm in a tea-cup.

    If voting is seen as such a key part of a functioning democracy, the politicians would make more of it where it matters. They would not have rushed into coalitions and then proffer policies they did not mention in their manifestos.

    And if a coalition was to be put together they should have gone back to the country for a mandate.

    So listen not to the politicians on the high value they place on the Vote.

    If one’s loss of liberty, at Her Majesty’s Pleasure, was to be reflected in the individual’s loss of democratic rights, then let the politicians put forward a manifesto which calls for those rights to be abrogated by the judge at sentencing.

  34. ukliberty — on 13th February, 2011 at 10:42 am  

    Random63,

    So it can be argued that they are effectively in a position to determine what our policies will be, just indirectly through fines and setting up possible compensation claims, as opposed to setting our laws directly.

    No, they can’t determine what our policies will be, they can only determine what they mustn’t be – the two really aren’t equivalent. We can do anything we want provided we can justify it and/or its within the margin of appreciation.

    And as the European Court of Human Rights is not accountable to the voters in the UK (though they don’t seem to have any trouble deciding who can vote in the UK), then this is a set up which makes me uneasy as it is very undemocratic.

    Huh?

    1. Everyone is enfranchised by default. Presumably, as you’re a supporter of democracy, you don’t think there is anything wrong with that.

    2. We’re obliged to think carefully about disenfranchising someone – it must be justifiable. What is wrong with this?

    3. This results from an agreement the UK is signatory to: a Convention that not only sets out our rights but also the Government’s obligations. People who are suggesting we ignore the outcome are against the rule of law. It’s fine in principle if you think we should renegotiate or withdraw, although that may have consequences that outweigh giving prisoners the vote.

    4. Politicians and electors aren’t always right – judges and human rights laws are vital checks and balances against poor outcomes from ‘democratic’ decision-making.

  35. Random63 — on 13th February, 2011 at 9:43 pm  

    Douglas,

    I have not advocated on this thread that laws should be broken, or even that prisoners should not be given the vote. So I’m not sure why you made that last comment.

    UK Liberty,

    I agree that disenfranchisung somebody should be taken seriously. I never said that it shouldn’t be.

    Having checks against politicians is good, as we all know what they can be like (eg the expenses scandal). Again, I never suggested that there should be no checks in place on our politicians.

    You do make a valid point about democratic decisions not always being right. However, you then hit a minefield of how to deal with that, which I certainly have no decent solution for. And if anybody does, then they should run for Parliament.

    I can’t help but think there are a few cross wires going on here (which is certainly partially my fault for not being as clear as I should have been in my first post). I am not advocating politicians can do what they like or that laws should be broken.

  36. douglas clark — on 13th February, 2011 at 11:04 pm  

    Random63,

    I looked over what I’d written earlier today and my use of the word ‘you’ personalised my comment far more than I had intended it to. It was not intended as a personal attack, although I can quite see why you thought it was. Apologies for that.

    I more or less agree with this blogpost:

    http://flyingrodent.blogspot.com/2011/02/complaining-about-human-rights-is.html

  37. Random63 — on 13th February, 2011 at 11:56 pm  

    No problems Douglas.

    I didn’t make my self very clear either on a couple of points, so I can hardly blame you for not being clear on one point either!

    This topic is far more complex than what can be covered in a couple of comments on this thread, as the article you link to correctly points out, so I think I’ll stop trying!

  38. douglas clark — on 14th February, 2011 at 12:54 am  

    Random63,

    Thanks for that. But the error was mine.

    Point of information. Threads on here can run and run!

    At least until our good host wonders why a thread he thought was dead now has a massive number of comments. Which is a sort of samizdat of what we are all really like. There is no consensus around here, apart, perhaps around a kind of liberal philosophy.

    The interesting threads on here go all over the place and we all learn interesting stuff we didn’t otherwise know.

    Please, don’t assume that my breach of civility is typical. Most folk around here are better than that.

    Keep posting!

  39. ukliberty — on 14th February, 2011 at 10:04 am  

    Random63,

    You do make a valid point about democratic decisions not always being right. However, you then hit a minefield of how to deal with that, which I certainly have no decent solution for. And if anybody does, then they should run for Parliament.

    We could have a document that sets out the freedoms / rights that politicians can’t interfere with unless they have good reason and allow members of the public to go to court to seek legal remedy when they think their freedoms /rights have been unjustly interfered with…

  40. Shamit — on 14th February, 2011 at 4:20 pm  

    So it is okay for unaccountable courts with no democratic mandate to overwrite legislation duly examined and approved by the Houses of Parliament.

    Both Douglas and Ukliberty have taken refuge under the claim that voters and their representatives are not always right – and our laws and decision making must not be subject to mob rule. Hard to argue.

    But in this case it was not mob rule but real questions about the Sovereignty of the Parliament are raised. According to governments, we have not surrendered our sovereignty in any way on EU treaties but when some unelected judges can overrule our Parliament – then I think we have. That is not welcome.

    Douglas mentions the US Supreme Court – but the Supreme Court does not have the power to stop Constitutional Amendments it only has the power to stop legislation.

    In this case, the sovereignty of our Parliament especially the House of Commons is supreme and the only real fundamental principle of our unwritten Constitution.

    This is a Constitutional Question – and no parliament under our system of governance and electoral methods have the right to enact any such laws that cannot be rescinded by the next parliament.

    With ECHR taking decisions that challenge our sovereignty is not appropriate to say the least.

    We must stand up for democratic power and the entire EU experiment is becoming more and more elitist and the people of Europe are not taken into confidence or their views into account. We pay the salaries of these elites – and I am really surprised that Douglas who is always ready to slam down our “betters” is happy with unelected, unaccountble judges with no democratic mandate and appropriate judicial credentials making decisions on our behalf.

    I think the new report from Policy Exchange makes a lot of sense:
    http://www.egovmonitor.com/node/40625

  41. Humpty Dumpty — on 14th February, 2011 at 5:12 pm  

    ukliberty:

    “No, they can’t determine what our policies will be, they can only determine what they mustn’t be – the two really aren’t equivalent. We can do anything we want provided we can justify it and/or its within the margin of appreciation.”

    So much for democracy and national sovereignty when we give a group of unelected foreigners an effective veto on our laws. We should only have to justify British laws to the British people and not to anyone else on the face of the earth. Anything less than that and we can’t call ourselves a democracy.

  42. douglas clark — on 14th February, 2011 at 6:01 pm  

    Shamit @ 40,

    My friend, I think you and I are about to disagree. I actually like the idea that Europe, and by default the UK, subscribes to principles that cannot be overturned – I’ll come back to that – by parliaments.

    Either you believe some things are indivisible, such as the ECHR, or you don’t. It is not the EU.

    It is a statement of what we believe to be rights indivisible, rights that ought to be defended and rights that no politician can overturn easily. It is a lock on pipsqueak politicians that are only a moment away from a soundbite or electoral disaster.

    It is Europe’s version of the US constitution. That document is well nigh impossible to overturn. And so it should be with the European Convention.

    Without boring you too much, which of the following do you, as a citizen, object to exactly?

    #

    * 3.1 Article 1 – respecting rights
    * 3.2 Article 2 – life
    * 3.3 Article 3 – torture
    * 3.4 Article 4 – servitude
    * 3.5 Article 5 – liberty and security
    * 3.6 Article 6 – fair trial
    * 3.7 Article 7 – retrospectivity
    * 3.8 Article 8 – privacy
    * 3.9 Article 9 – conscience and religion
    * 3.10 Article 10 – expression
    * 3.11 Article 11 – association
    * 3.12 Article 12 – marriage
    * 3.13 Article 13 – effective remedy
    * 3.14 Article 14 – discrimination
    * 3.15 Article 15 – derogations
    * 3.16 Article 16 – aliens
    * 3.17 Article 17 – abuse of rights
    * 3.18 Article 18 – permitted restrictions

    # 4 Convention protocols

    * 4.1 Protocol 1, Article 1 – property
    * 4.2 Protocol 1, Article 2 – education
    * 4.3 Protocol 1, Article 3 – elections
    * 4.4 Protocol 4 – civil imprisonment, free movement, expulsion
    * 4.5 Protocol 6 – restriction of death penalty
    * 4.6 Protocol 7 – crime and family
    * 4.7 Protocol 12 – discrimination
    * 4.8 Protocol 13 – complete abolition of death penalty
    * 4.9 Procedural and institutional protocols

    It seems to easy to reject the good for some sort of short term political advantage.

    Do you think, for one moment, that British nutcases should have sway on, say, the death penalty?

    The point of the European Court of Justice is that we as a nation have signed up to it and Cameron and Co will have to go against Churchill, who signed us up for it, who is also a conservative hero, and obviously thought a bit beyond a sound bite.

    To that extent, we have surrendered our political soveriengty, and I, for one welcome a judicial rather than political decision on matters of import. For it is a complete mistake to assume that politicians always act in our best interests, especially minority interests. They don’t even have a clue about minority rights, they see them as something to make capital out of.

    We need the law. And we need to tell politicians to stop trying to tamper with it.

    Told you we’d disagree.

    Bottom line. A written constitution is a necessity in a modern democracy. Discuss.

  43. Scooby — on 14th February, 2011 at 6:10 pm  

    The point of the European Court of Justice is that we as a nation have signed up to it and Cameron and Co will have to go against Churchill, who signed us up for it, who is also a conservative hero, and obviously thought a bit beyond a sound bite.

    I think you can safely say that when Churchill signed up the UK to the ECJ, he had in mind that the long British tradition of liberty and the rule of law would be a positive influence on the deliberations of the court, whose verdicts would be mostly aimed at the semi-barbarian countries on the Continent that had descended into fascism and communism.

    Generations later, the tables have been turned, and the ECHR is now actively undermining those very British traditions. Time to withdraw from the ECJ.

  44. douglas clark — on 14th February, 2011 at 6:16 pm  

    Humpty Dumpty sat on a wall,
    Humpty Dumpty had a great fall.
    And all the Kings Horses and all the kings men,
    Couldn’t put Humpty together again.

    Yup, that’s you.

    @ 41.

    Lets look at what you had to say:

    So much for democracy and national sovereignty when we give a group of unelected foreigners an effective veto on our laws. We should only have to justify British laws to the British people and not to anyone else on the face of the earth. Anything less than that and we can’t call ourselves a democracy.

    Well, two points, firstly we voluntarily did this, and secondly everyone else did too. Of course we can collectivise sovereignty, who are you, the ghost of Enoch Powell or summat?

    You are my claim to have discovered the ‘stupid’ gene.

  45. ukliberty — on 14th February, 2011 at 6:19 pm  

    Shamit,

    So it is okay for unaccountable courts with no democratic mandate to overwrite legislation duly examined and approved by the Houses of Parliament.

    I think it is important that a member of the public can seek a remedy if he feels his freedoms and rights have been unjustly interfered with.

    It’s interesting that, despite our politicians being among the most distrusted people in the UK (see British Social Attitudes Surveys etc), they’ve got nothing on unlected Johnny Foreigner judges. There seems to be nothing worse than foreign judges ruling on whether the UK has breached an agreement it created and became signatory to, not even a bunch of expense-fiddlers whinging and procrastinating for over five years.

    Presumably if politicians want to interfere with a freedom or right, they ought to be able to justify it or not do it?

    Presumably everyone sane thinks there ought to be some means by which we can seek a remedy if we believe our freedoms or rights have been unjustly infringed? This surely entails (1) some kind of document that we can look at to determine what those are in law and (2) a fair hearing to determine if we’re right or wrong.

    (Perhaps this is where I part ways with some people because I do not believe Parliament ought to be surpreme in that sense.)

    In principle, then, there seems nothing wrong with a court saying to our Government, you’re not allowed to do this, go away and try to think of a justification for interfering with the right to vote, have it put it into law, and we’ll look at it again.

    Now, as to where the court resides etc, I’m sure there is room for improvement in the European Court of Human Rights (ECtHR). I don’t particularly care what the court is, provided it it is competent, fair, and has some measure of public support (after all, justice must be seen to be done, etc). I’d prefer it to be in the UK because I have a lot of faith in our judiciary and don’t know anything about foreign judges except from the ECtHR judgements I’ve read, but they don’t have the same power as the ECtHR so I’ll stick with that for the time being.

  46. douglas clark — on 14th February, 2011 at 6:41 pm  

    Scooby @ 43,

    I think you can safely say that when Churchill signed up the UK to the ECJ, he had in mind that the long British tradition of liberty and the rule of law would be a positive influence on the deliberations of the court, whose verdicts would be mostly aimed at the semi-barbarian countries on the Continent that had descended into fascism and communism.

    Are you that nuts or did you pick that up from some sort of crazy libertarian web site?

    It is the case that attempting to spread the rule of law is generally seen as a good thing. It is for you to reflect on the fact that – if it comes back to bite you – it is you that hasn’t played the game. I am not exactly aware of too many european states that would accept your judgement about them as:

    semi-barbarian countries on the Continent that had descended into fascism and communism.

    Do you have any countries in mind that haven’t tried to rise above that cheapskate and nasty definition of history?

  47. ukliberty — on 14th February, 2011 at 7:23 pm  

    Scooby,

    I think you can safely say that when Churchill signed up the UK to the ECJ, he had in mind that the long British tradition of liberty and the rule of law would be a positive influence on the deliberations of the court, whose verdicts would be mostly aimed at the semi-barbarian countries on the Continent that had descended into fascism and communism.

    And what an example we have set, with our infringements on habeas corpus, fair hearings, etc?

    Do you imagine Churchill might be surprised?

    (Incidentally, this conversation is about the ECtHR, not the ECJ, and there are many more ECtHR cases against governments other than the UK; France, nearly double the cases, Italy nearly five times as many.)

  48. Shamit — on 15th February, 2011 at 11:26 am  

    UK Liberty:

    I do not disagree with you that citizens must have the right to challenge arbitrary government decisions in a court of law – however the court of law in any case should be the Supreme Court of the United Kingdom.

    However, challenging scope of legislation is difficult without, as you have rightly said, having a written Constitution.

    What are our “inalienable rights – conferred upon by our creator”? Those have to be defined and needs to be affirmed by the electorate because we are changing the frame of governance.

    Now, citizens do have the right to challenge government decisions in courts of law but do not really have the right to challenge Parliament’s decision except for to throw the bums out in the next election.

    I am all for a written constitution – because it creates a contract between our government especially the Prime Minister and the citizens as well as between various levels of government. A constitution or a bill of rights must enshrine principle of equality, fairness, justice etc etc – however, right to vote for a prisoner is not that simple.

    A prisoner who commits an act of severe criminality – by rule of law loses rights to liberty and freedom and therefore could be argued the rights to vote until they come out of prison.

    Rights of victims and society must always supercede rights of criminals and the Parliament does have the right to differentiate between various levels of criminals.

    However, any institution that chooses to overturn Parliament’s decision must have accountability and some democratic credibility. In this case, ECHR fails on both grounds.

    I do not have arguments with your basic premise but I do question transferring sovereignty without seeking approval from the electorate.

  49. Shamit — on 15th February, 2011 at 11:40 am  

    Douglas:

    I think factually you are wrong. While Churchill might have signed up to ECHR, it was under Blair that we adopted the ECHR to be incorporated within our laws through an act of Parliament.

    Prior to 2000, there was no compulsion for Britain to abide by ECHR directive – so your argument that this is like the US constitution is erroneous. And as Britain’s frame of governance was changed ideally, it would have required affirmation from voters.

    The only reason there was no referendum was due to the face that a following Parliament can rescind that legislation.

    The US Constitution gives rights to individuals on its soil but despite the free movement clause and inter state commerce clause, the US government has created different levels of residents within the US. first comes citizens, second permanent residents and then others. Although no such thing exist in the four page document which I almost know by heart.

    And the US Constitution and Supreme Court do not prohibit a naturalised foreign terrorist to be stripped
    of his citizenship and be deported but ECHR does.

    The US Consitution was designed to protect the interests of Americans – here the ECHR plays a role where interests of Britain and other member states are harmed.

    For example, the ECHR does not want us to deport the hook – I think the government would be completely within its right to throw him out of the country and strip him of his naturalised citizenship.

    What happens if tomorrow the idiots in the ECHR rules that all illegal migrants ending up in the Uk should be given immediate citizenship?

    The US constitution and its amendments have been ratified through a democratically elected process – ECHR has failed to do so and therefore does not equate with the supreme law of the land.

  50. ukliberty — on 15th February, 2011 at 1:12 pm  

    Shamit,

    I think factually you are wrong. While Churchill might have signed up to ECHR, it was under Blair that we adopted the ECHR to be incorporated within our laws through an act of Parliament.

    Prior to 2000, there was no compulsion for Britain to abide by ECHR directive …

    The British Government was and remains obliged to abide by the court’s decisions, IIUC.

    Dominic Grieve:The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right [that Parliament is sovereign], that does not remove the necessity for the Government to be bound by their treaties and international obligations.

    In other words, prior to the Human Rights Act 1998, which is what I think you’re referring to, people could go to the European Court and seek a decision binding on the Government.

  51. ukliberty — on 15th February, 2011 at 1:34 pm  

    Shamit @48, we seem to be largely on the same page, I think, except for a couple of things.

    Now, citizens do have the right to challenge government decisions in courts of law but do not really have the right to challenge Parliament’s decision except for to throw the bums out in the next election.

    Again, this is where you and I part ways.

    If for example Parliament made trials unfair, or got rid of habeas corpus, I would say Parliament can go hang. And you will find a number of our judges express similar views – perhaps most notably in recent years when they locked heads with Blair when the-then Immigration and Asylum Bill contained a so-called ouster clause.

    I am all for a written constitution – because it creates a contract between our government especially the Prime Minister and the citizens as well as between various levels of government. A constitution or a bill of rights must enshrine principle of equality, fairness, justice etc etc – however, right to vote for a prisoner is not that simple.

    A prisoner who commits an act of severe criminality – by rule of law loses rights to liberty and freedom and therefore could be argued the rights to vote until they come out of prison.

    Agreed that the right to vote for a prisoner is not simple. But,

    1. citizen ought to be enfranchised by default;

    2. there must be a justification for disenfranchising someone.

    I have not heard any justification for disenfranchising someone other than, “because he is a criminal”. To me that is insufficient but I’ll leave that there, I am repeating myself.

  52. ukliberty — on 15th February, 2011 at 3:53 pm  

    Further to my comment @51 about sovereignty, read this judgement from paragraph 102 to 108 – the the absolute legislative sovereignty of Parliament is not unqualified.

  53. Humpty Dumpty — on 16th February, 2011 at 7:43 pm  

    @45 ukliberty

    “Well, two points, firstly we voluntarily did this, and secondly everyone else did too. Of course we can collectivise sovereignty, who are you, the ghost of Enoch Powell or summat?”

    Ah yes, the old concept of ‘pooled sovereignty’, an example of Orwellian doublethink if ever I’ve heard it.

  54. douglas clark — on 16th February, 2011 at 10:10 pm  

    Humpty Dumpty @ 45,

    pooled sovereignty

    Well, how otherwise would you describe any alliance?

  55. Shamit — on 16th February, 2011 at 11:29 pm  

    UK Liberty – the points raised in the judgement actually support my position.

    Although inconceivable, the Parliament can by right reverse devolution to England and wales or suspend it like it has done in Northern Ireland.

    Secondly, both Law Lords actually cite the incorporation of the ECHR in 1998 as a key erosion of Parliamentary sovereignty.

    While I agree with the reasoning of the law lords, I do disagree with them on the conclusions they draw from there.

    They argue, it is okay for the court to disregard democratic will of the people which is represented by the Parliament. I disagree.

    The law lords actually have been proven wrong as well on this very point. In their judgement that you cite, one Law Lord said he found it troubling that the government would use the Parliament’s sovereign legislative power to alter the composition of the House of Lords or even its abolition.

    But this is exactly what happened when the last Parliament created the Supreme Court and pretty much removed judicial powers from the House of Lords.

    One might also argue that the Parliament’s power is derived from the people within a understood frame of reference which is our common law traditions and history. Moving beyond that requires affirmation from the electorate especially if a following Parliament cannot rescind actions of one Parliament.

    And there is precedence for such action – for example the Scottish and Welsh devolution was done through a referendum – technically not needed but as the entire construct of the governance of those areas were being altered the then Prime Minister and Government chose to seek the approval of the voters. Bloody right too.

    In the case of ECHR, the law was incorporated within British law and hence Tony Blair could argue he did not surrender sovereignty.

    I am not saying that all treaties or government decisions must be put to referendum – in fact quite the contrary. However, when you alter the frame of reference and the constitutional basis of your power you do need to seek the approval of the people – because they are ones who actually hold the power and you just wield it on their behalf.

    Just like if this Parliament decides to continue without holding an election – it would require approval from the people – why shouldn’t powers handed over to a foreign entity be subject to the same treatement.

  56. ukliberty — on 17th February, 2011 at 9:55 am  

    Humpty Dumpty @53, I didn’t write the comment you attributed to me.

  57. ukliberty — on 17th February, 2011 at 1:39 pm  

    (IIUC, IANAL, etc)

    Shamit, with respect, I think you misunderstand the English constitution: (theoretically) power is not derived from the people but from the Queen, who delegates her power to Parliament.

    Popular sovereignty – where power derives from the people and is delegated to their representatives – applies to, say, the USA.

    Now, it’s my view that power ought to derive from the people – but in the UK it does not (theoretically).

    As for surrendering power to the EU… let’s put it this way, Parliament is no longer wholly, absolutely sovereign until Parliament says it is – successive Governments have surrendered parts of sovereignty. See para 4 of this judgement for example.

    On Blair – I really hope you’re not quoting him as an authority on law!

  58. ukliberty — on 17th February, 2011 at 2:15 pm  

    There are all sorts of subtleties in this topic that I feel I’m only just beginning to grasp and that lots of people don’t see until they start looking into it.

    I hesitate to pray in aid Jack Straw, but have a look at his evidence to the Select Committee on European Scrutiny:

    Q234 Mr Cash: We can break our treaties by statute. Lord Diplock made that abundantly clear in a House of Lords case.

    Mr Straw: The British Parliament as I was taught at school—this has not changed—can do anything it wants, but there are consequences in the real world.

    Q235 Mr Cash: Fortunately.

    Mr Straw: Politics and government are about responsibility. If we pass a law which is plainly and expressly inconsistent with treaty obligations, we will then be in breach of those treaty obligations. The consequences are likely to be political and financial, more than legal, but they may also be legal in other jurisdictions in which we voluntarily have accepted the authority.

    There is a complex interplay between our domestic judiciary, Parliament, the executive, and those institutions with equivalent functions and powers in the organisations we have treaties with; competing theoretical and practical powers.

    Furthermore (also), and interestingly, given the recent controversies relating to prisoner votes and sex offenders register,

    16. First, should Parliament do something which would make the UK run counter to its international obligations? As a country which respects the rule of law, this seems to us to be contentious. It is certainly not something which we would support should any other Member State seek to do it.
    17. Second, there would be serious consequences flowing from such a decision. The Treaties which the UK Parliament has freely agreed bind the UK include provisions which allow the European Commission to institute proceedings against a Member State for breach of its obligations under the Treaties. This can lead to an adverse judgment from the Court and the imposition of heavy fines (which can take the form, of both a lump sum and per diem charge) for non compliance with our Treaty obligations.
    18. We also disagree with the suggestion that there is something unconstitutional about giving primacy to EU law, or that the principle of primacy or supremacy of EU law somehow undermines the sovereignty of the UK Parliament. The Government is absolutely clear that because the UK is dualist, EU law – including the principle of primacy – is enforceable under the law of the United Kingdom only because the United Kingdom Parliament so provides.

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