My immediate reaction to last week's Commons vote to keep the ban on prisoners voting was mixed, one of contempt and astonishment: contempt for a bunch of people who were pursuing to illiberal and chauvinistic depths the idea of British ‘exceptionalism’ – that the ‘British way of doing things’ is superior to all other democratic ideas and practice – and astonishment that our legislators seem to have no understanding of the principles of the rule of law and democracy that require that minorities should have judicial protection against the will of the majority as expressed through the legislature.
The right to vote is, as the peoples of Egypt and other Middle Eastern countries have been demonstrating for weeks, a fundamental, though not sufficient, condition for democracy and for the dignity of citizens. To bring to an end the near blanket disenfranchisement of prisoners would merely repair an undemocratic anomaly that Democratic Audit has long since identified.
Suzy Dean has argued on OurKingdom that the Court’s initial judgment ought to be resisted as it was tokenistic and ‘gimmicky’. Yet the idea that all prisoners should remain social and political outcasts with no role in the democratic affairs of the state is a straightforward denial of their civil and political rights, all the more so as British jails are crammed full of people guilty of minor criminal offences who ought not to be banged up in the first place. The more advanced European and Western nations already take it for granted that prisoners may vote and the UK should join them.
What was at stake in the Commons was not the security of the realm, though as Francesca Klug has remarked, ‘you would hardly have known this’. It was however a heart-felt response to the feeling that the UK is losing its independence as a nation within an all-encompassing ‘Europe’ that is invading our way of life in a huge variety of ways and in a world where international organisations have usurped our ability to take our own decisions.
The trouble is that MPs have confused the UK’s diminished power in Europe and the world with the bedraggled constitutional notion of parliamentary sovereignty that ‘Europe’ and the world beyond has brought to an end. Even in domestic politics, it is a meaningless concept for it is government that owns sovereignty at the expense not only of Parliament but all of us. Parliamentary sovereignty is a ‘dead parrot’, one which Gerry Hassan has recently dissected at length. (If MPs are to get edgy about loss of sovereignty I would advise they pay attention to the enemies within: the major corporations aided by the Treasury which avoid tax here by removing their HQs and cash out of the UK. But that would involve dealing with the real world with all its complexities.)
Now I would add ‘alarm’ to my initial reaction. First, as YouGov polls for the Sunday Times show, the public largely agrees with the MPs: 69 per cent agree that prisoners should be deprived of the vote. But there is also a strong anti-European element in public attitudes that reflects the views of MPs: nearly two thirds of respondents believed that Parliament and the UK Supreme Court should have ‘the final say’ on whether someone’s human rights had been abused, as against a quarter who chose the European Court of Human Rights; and more than a half agreed that the UK should opt out of the European Convention and establish ‘our own Bill of Rights’.
Secondly, the rightwing press is plainly gearing up for a renewed onslaught on the protection of human rights by the ECHR that will also harm public understanding. The Sunday Times took off last week with a front-page story, ‘European court ruling to free jailed sex offenders’, and a two-page report, ‘The European court creeping into every area of our lives: Strasbourg’s judges are making federal law that undermines British courts and aids criminals’. These stories draw their venom from cases in which the ECHR has ruled against convictions based on written evidence that have denied the accused an opportunity to cross-examine witnesses. There are also signs that some UK judges resent recent ECHR judgment, amidst their fears that the Strasbourg court is seeking a role in Europe akin to that of the US Supreme Court in America.
The Commons vote, visibly encouraged by Cameron, does introduce new tensions into the coalition government. The government is not formally bound by the vote, but politically it is going to cause unforeseeable consequences. It is hard to know what Cameron is up to. He has prepared a possible escape clause with his warning that the Exchequer may pay a high price for resisting the ECHR in compensation claims for prisoners, and a compromise based on the length of sentences is obviously possible. But has he, an avowed Eurosceptic, a more challenging prospect in mind? Before the election, Cameron had led the Tories into advocating the replacement of the Human Rights Act with ‘our own Bill of Rights’, the purpose of which was to free the judiciary here from ECHR judgments. That policy is now on hold under the coalition agreement.
But as the prisoners’ vote debate made clear, exasperation with the ECHR is a potent force in his party. In the debate, Dominic Grieve, the Attorney General, a long-term defender of the status quo, said that the government would its ‘international obligations’ under the European Convention, for to do otherwise would ‘diminish our own status, in terms of our respect for international law as much as domestic law’. However, he has also opened up the possibility of the UK withdrawing from the European Court of Human Rights in remarks to the Politeia pressure group, as Patrick Wintour reported in the Guardian. Grieve said:
“The court doesn't have the last word. It only has the last word so far as parliament has decided that it should. We could, if we wanted to, undo that – I think we should always bear that in mind – and actually undo it without some of the consequences we have over the European Union."
Reflecting on last week's Commons vote opposing giving prisoners the right to vote, he said the government now faced a conundrum:
“On the one hand, here is a decision by the ECHR which is clearly not liked by the prime minister and virtually everyone else in government I can think of, including myself. And yet here is a convention which has been seen as being a defining benchmark for UK values and standards since the late 1940s.”
The legal, and probably also the diplomatic, position remains that withdrawal from the European Convention is not a realistic objective. Nor could ‘our own Bill of Rights’ free the UK and our judges from the rulings of the European Court of Justice. But Cameron may well be prepared to put the coalition at risk by defying the European Court in a populist manoeuvre that will satisfy his backbenchers.
Whatever happens, the chase by the media and rightwing Conservatives after this particular hare will almost certainly set back popular understanding and acceptance of human rights as universal as well as domestic obligations, reinforce prejudices against unpopular minorities and further still anti-European sentiment in the country.