The case for “defying Strasbourg” over Prisoner votes


David, together with former Home Secretary, Jack Straw, wrote an article for the Daily Telegraph setting out the case for Britain to defy the European Court of Human Rights over its recent ruling that a blanket ban on votes for prisoners was unlawful.

Just over a year ago the House of Commons was the scene of a robust debate on prisoner voting rights. By a majority of more than 200, MPs from both sides voted in favour of the current law that convicted prisoners cannot be on the electoral roll.

We do not dispute the right of the Strasbourg Court to curb government excesses within the constraints of the Treaty and Convention Britain signed. However, in attempting to overrule British law on prisoner voting rights, Strasbourg judges have exceeded the limits of their proper authority. If the Court does not reflect the views of member states of the Council of Europe, there will be conflict. Where the court infringes our constitutional rights, we will not back down.

Regrettably, this emphatic statement of Parliament’s will did not stop the European Court of Human Rights (ECHR) from declaring on Tuesday that Britain’s ban on prisoner voting is unlawful. The Court has ordered us to legislate to give prisoners the vote within six months. We should do no such thing.

Of course prisoners have rights – to be reasonably fed, clothed, and housed – but they do not have all those that free British citizens enjoy. When a person commits a crime which is sufficiently serious to put him in prison, he sacrifices his liberty, his freedom of association, and his vote. When we vote in a government we choose a group of men and women to make laws on our behalf. Convicted prisoners should have no say in this; those who break the law cannot make the law.

On a visit to Britain in 1997, the former German president Roman Herzog was asked what would happen if there was a conflict between the ECHR and the German Constitutional Court. The president replied: “I think the German people would support their own court.” On prisoner votes, we believe the British people will support their own Parliament.

Of course, the UK Government should not defy Strasbourg judgments regarding serious breaches of human rights, such as concerns that a deportee may be tortured. Such cases are precisely what the Court was set up to do; its conclusions in such cases ought to be respected by Britain in accordance with our obligations under the European Convention on Human Rights.

However, in recent years the Court seems to have forgotten that its job is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less. A separate “Vienna Convention” requires that international treaties must be interpreted as their drafters intended. Ignoring this injunction, the Court has defined the Human Rights Convention as a “living instrument” to allow it to expand its influence as the judges see fit.

As a result, we now find ourselves in a situation where the Court is trying to impose judgments on Britain which would have astonished those who signed the Convention. And by taking this approach, Strasbourg risks undermining its own authority.

If the Government does what it’s told and puts a Bill before Parliament which proposes giving votes to prisoners, MPs would almost certainly throw that Bill out. Not only is this rather ironic given the Court’s aim of protecting democracy, it also means that a legitimate and properly elected national parliament effectively checkmates the Court when its judges act outside the limits of their proper authority.

Should the Court insist on expanding its influence, Strasbourg judges will find themselves more frequently in direct opposition to national courts and parliaments. Democratic parliaments across Europe will be forced, with increasing regularity, to choose between the will of their people and the views of foreign judges.

You can be certain that, if Britain does stand up to Strasbourg over prisoner votes, it will be noticed beyond our borders. For example, the day after the Commons debated the issue last February, a leading Dutch human rights professor got in touch to tell us that similar concerns were felt by Dutch politicians. There is also serious concern about the Court in countries such as Holland and Germany. By attempting to back Britain into a corner, Strasbourg risks seeing defiance of its judgments become the rule rather than the exception.

So what happens now? There are those who say we have accepted the jurisdiction of the Strasbourg Court and must now obey all its decisions. This is not the case. Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the Government over this issue. The Court does not have the power to fine Britain for non-compliance.

Nor would we be expelled from the Council of Europe for non-compliance, as some like to claim. The Council, which is in charge of the Strasbourg Court, has failed to expel Bulgaria for cases of fatal police brutality, Moldova for torture in prisons, and Russia for atrocities committed in Chechnya, so it is hardly likely to expel Britain for not putting a ballot box in Wormwood Scrubs at next May’s local elections. If we say “sorry, but no” to Strasbourg over prisoner votes, the matter will simply remain on a long list of unenforced judgments.

It is the duty of parliamentarians to protect Britain’s ancient rights and freedoms. But while we must defend those rights fearlessly, we should never confuse those universal freedoms with the minor social policy issue of prisoner voting rights.

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