It is an affront to the sovereignty of an independent nation state that a panel of foreign judges should rule on a matter of its domestic law and require its government to make changes to it.
If that was true of the United Kingdom, in the case of Hirst v. the United Kingdom on the rights of prisoners to vote in the UK, then the judgement handed down today by the Court of Human Rights in Strasbourg would indeed be outrageous.
To summarise briefly, quoting from the court's press release, the case was brought by John Hirst, a British national aged 54, who was serving a sentence of life imprisonment in HM Prison Rye Hill, Warwickshire after pleading guilty to manslaughter on the ground of diminished responsibility.
As a convicted prisoner, Mr Hirst (pictured right) was barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections. According to the United Kingdom Government’s figures, some 48,000 other prisoners are similarly affected.
Mr Hirst issued proceedings in the High Court, under section 4 of the Human Rights Act 1998, seeking a declaration that section 3 was incompatible with the European Convention on Human Rights. On 21 and 22 March 2001 his application was heard before the Divisional Court; but his claim and subsequent appeal were both rejected.
The Court held by 12 votes to five, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights Under Article 41. He was not awarded damages but allowed €23,200 for costs and expenses.
That the court was able to so rule stems entirely from a previous government’s decision to ratify the Convention of Human Rights and from the current government’s decision to give it effect in the British legal code by virtue of the Human Rights Act 1998. Thus, if there is blame to be apportioned for this state of affairs, it belongs rightly to this government and to Parliament which permits the Act to remain on the statute book.
With that, the judgement was, in fact – or so it seems to us – reasonable and sensible. The court did not rule that all prisoners should be given the right to vote, nor even that Mr Hirst should have been given that right. Nor even did the court argue that prisoners could not be deprived of the right to vote.
What it did say was that the right to vote in a democracy is a right not a privilege and, therefore, any limitations on that right had to be imposed “in pursuit of a legitimate aim and be proportionate.”
The court emphasised that prisoners generally continued to enjoy all the fundamental rights and freedoms guaranteed under the convention, except for the right to liberty, where lawfully detained. There was, therefore, no question that prisoners forfeit their convention rights merely because of their status as detainees following conviction.
This did not exclude the imposition of restrictions on electoral rights on an individual who had, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations.
However, the court rules, the severe measure of disenfranchisement was not to be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. As in other contexts, it added, an independent court, applying an adversarial procedure, provided a strong safeguard against arbitrariness.
In effect, what the court was saying was that a "blanket restriction" on the right of convicted prisoners, without taking into account the circumstances and the nature of the offences, was wrong. Section 3 of the 1983 Act was "a blunt instrument". It stripped of their convention right to vote a significant category of people and it did so in a way which was "indiscriminate".
It applied automatically to convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important convention right had to be seen as being incompatible with the convention.
One can imagine all sorts of instances where a prisoner, for a relatively minor offence, might be imprisoned and, by accident of timing, be deprived of a vote at an election when another prisoner, having committed the same offence and received the same sentence, might not be so deprived. Many other anomalies could arise which, to any reasonable person, could be considered as manifestly unfair.
Thus, the government – with its lawyers - is going to have to go away and reconsider the Act and come up with a scheme of changes which will satisfy the convention which it, itself, brought into effect. That is precisely what it has pledged to do and we will have to wait to see what it comes up with.
We are assured that by no means all of the 48,000 prisoners currently incarcerated will get the vote. Furthermore, contrary to some alarmist reports , it is unlikely that prisoners who are given the vote will be casting their vote in the area of their incarceration. More likely – as with Service personnel – they will vote in the area in which they were last registered before imprisonment.
For those who might argue that, irrespective or the merits or otherwise of the judgement, any decision to change the law should have come from our own Parliamentarians, we agree. But, where were they? We do not recall any MPs bringing this issue to the House and arguing against what is a manifest injustice. Theirs, perhaps, should be the embarrassment.