On Friday the Commons voted to ignore judgments of the European Court of Human Rights, from Hirst v UK (No 2)  ECHR 681 onwards, and deny prisoners the vote in any form. Lawbreakers should not be allowed to vote, said the lawmakers.
Parliament did not pass an Act that would challenge the legal status of the judgment in Hirst. It remains legally binding. All that was passed was a resolution of the House of Commons. Such resolutions have zero legal effect (Stockdale v Hansard (1839) 9 Ad & El 1). The legal status of the Human Rights Act 1998, the European Convention on Human Rights and the decision in Hirst thus remain unchanged. Parliamentarians therefore simply voted for the government to disregard these.
In other words, the parliamentarians felt so strongly that lawbreakers should not be allowed to vote that they voted in favour of breaking the law.
On the same day Eric Illsley, until recently the MP for Barnsley Central, was sentenced to 12 months imprisonment for fiddling his expenses. In line with domestic law he will, of course, not be allowed to vote while he is in prison. But he would, had he not resigned, have been able to stay on as an MP under section 1 of the Representation of the People Act 1981. Lawbreakers can’t vote for the lawmakers, but they can themselves be one.
In a similar vein, if you were to breach a court order, or otherwise act in contempt of court, you could face a sentence of up to two years’ imprisonment. Even though you have arguably demonstrated more disregard for the law and society than other prisoners, you would not be deprived of your right to vote.
This might suggest that the position is a little contradictory.
Much of what has passed for a debate on this issue has been depressing. In many quarters it has been massively ill-informed.
The right to vote is absolutely fundamental to being a democracy. To suggest that there should be no judicial oversight of this right, while maintaining judicial protection of others, would be to leave a glaring omission in the law protecting fundamental rights. The right to vote is too important to not have it subject to any legal protection.
To suggest that “when you break the law, you lose your rights” is patently false. If that simplistic formulation were true, there would be no need to bother with a right to a fair trial, prohibitions on inhuman punishment, the right to counsel and so forth. The concept of ‘civic death’ is outdated, and nobody seriously suggests a return to the old sentence of outlawry. When you break the law, you forfeit some rights. Which, and to what extent, are decided by society and overseen by the law.
The logic advanced is that denying prisoners the vote should be considered part of the punishment runs into problems because it becomes a punishment that is inconsistently applied, and not just given the examples I mentioned at the beginning. Sentencing is based on the specific factors affecting that offence and the offender himself. The principle is that two (let’s say) identical crimes and offenders should receive the same punishment. A blanket ban on voting runs into difficulties here.
The shortest possible prison sentence a court can impose is seven days. On the assumption that a general election were to be held at regular 5-year intervals, that would mean that, roughly speaking, only one in 260 people sentenced to a 7 day sentence would be punished by disenfranchisement. That is for no reason other than the date the trial and/or sentencing hearing is held. It bears no relation to the facts of the offence or the circumstances of the offender. An additional punishment is being imposed on an entirely chance-basis. That goes against the idea of consistent sentences.
Moreover, is it really right to say that someone sentenced to seven days in prison has transgressed so badly that he should be deprived of the vote? If so, why should he be disenfranchised while the offender given a two-year suspended sentence (indicating greater harm and culpability) remains free to vote? And why should someone sentenced to two years for contempt of court be allowed to vote over them?
The ban is, as the ECtHR said, ‘a general, automatic and indiscriminate restriction on a vitally important Convention right’.
Contrary to what other commentators have suggested, this is the thrust of the judgment in Hirst. It is not suggesting that the Peter Sutcliffe’s of this world should be allowed to vote, nor anyone convicted of a serious offence. There is legitimate scope to ban those convicted of certain offences or in certain circumstances from voting.
This, however, is where the crux of the reaction to the judgment is. People don’t like the idea that human rights laws protect people we don’t like. People like John Hirst, whose background and appearances in the media are, to say the least, inflammatory, are used as examples of why the franchise should not be extended. Human rights are fine, so the argument goes, so long as they are only extended to the people with whom society sympathises. To suggest this, however, is to misunderstand how human rights, and in particular human rights laws, work.
Human rights laws are not really there to protect those the mainstream of society likes. They can generally stand on their own two feet in a democracy in the knowledge that mainstream opinion supports them and can apply pressure to change the law. They are there to protect those that are shunned and hated. Although anyone can say today that the historic (and in some cases recent and ongoing) denial of the human rights of, for example, Jews, Gays and Black people were bad things and that human rights laws protecting them are a good thing, this ignores that at the time when they were most needed such a view would very much be in the minority. The mainstream view would have been that jews and homosexuals were deviants who had placed themselves outside of society, and that granting them the same rights of civilised people would make one ‘sick to the stomach’. Human rights are there precisely to protect those people society shuns, for they are the very people whose rights are most likely to be violated. You don’t persecute people you like.
And at any rate, John Hirst will be able to vote regardless of the outcome here. He’s no longer in prison. He’s not actually that relevant to the issue.
It is, of course, open for Parliament to withdraw from the European Convention of Human Rights, legal minefield though it may be. To do so would in my view, however, be a massively retrograde step.
A British pull-out from the ECHR, or a British decision to reject a ruling by the court, would give great comfort to just those governments cited by Mr Davis above [‘Bulgaria for police brutality, Moldova for torture and Russia for atrocities committed in Chechnya‘]. The ECHR is attacked in this country for having a huge backlog of thousands of unheard cases. Much of that backlog involves Russian cases, because the ECHR has become—in the words of one old Moscow hand—the “unofficial supreme court of Russia”. Look at the list of countries that have flouted ECHR rulings in the recent past. Russia is there, as is Azerbaijan (a country with a noted enthusiasm for jailing journalists, among other things).
Pulling out of the ECHR wouldn’t just “repatriate our rights”, it would strike a serious blow to the authority of the ECtHR. Having Britain in the system provides us with significantly more moral and practical authority on the human rights of countries on the periphery of Europe than we would have if we went it alone. Is it really worth sacrificing that for the sake of giving the vote to a few thousand people?