VOTES FOR PRISONERS

The British House of Commons last week voted to continue the blanket ban on prisoners voting in elections. Although the decision is not binding, it was a bad move, for two reasons.

Before giving those reasons, a bit of history. The ban is the result of two longstanding ideas. The first is that under the common law, perpetrators of serious crimes (called "felonies", as opposed to "misdemeanours") were not only subject to personal punishment, usually death, but also forfeited their land and other assets to the state. The second is that the development of the right to vote in the United Kingdom was closely related to how much property you owned. Putting those two ideas together eventually resulted in the legislation which prevents prisoners from voting. This remains the case today, even though there is now no distinction between felonies and misdemeanours, and there is universal suffrage for everyone over the age of 18. In the United States, which has the same common law tradition, and where there is still a distinction between felonies and misdemeanours, felons in some states are not only banned from voting while they are in prison, but for life.

The more recent history is that in 2005, this blanket ban was rejected by the European Court of Human Rights in an appeal by a convicted killer, John Hirst. The right to be able to participate in free and fair elections is not an absolute one, and can be restricted if there is a genuine societal aim and the restriction is a proportionate response in order to further that aim. But the court decided that a blanket ban affecting all prisoners under a wide variety of circumstances did not meet this test. Under the rules of the court, the relevant Government losing such a case must enforce the decision. However, the then Labour Government prevaricated, and did nothing. Last June, the Council of Europe urged the new coalition Government to rectify the situation. Again, though, nothing has been done. After last week's vote, it is less likely that something will be done.

Now the two reasons. The first is that banning prisoners from voting does nothing to enhance their sense of belonging to society. Everybody who deals with prisoners - the police, prison guards, rehabilitation charities, prison priests - says that it makes their job of rehabilitation more difficult. It also adversely affects young men and ethnic minorities, since they are disproportionately represented within the prison population. Yet they are also two groups, where you would wish to increase their sense of civic responsibility. Other countries (eg Denmark) place no restrictions on prisoners' voting without discernible problems. Indeed, Ireland, which used to have the same ban as the U.K., dropped it a couple of years ago, following the Hirst judgment.

The second is that the European Convention on Human Rights is not only a "good thing" in itself, but a legal obligation enshrined in domestic law. Not enforcing the judgment leaves the Government open to compensation claims from affected prisoners and/or possible suspension by the Council of Europe (leaving the country in the sole European company of Belarus). More fundamentally, it is not a good thing, if a Government does not uphold its legal obligations.

The Commons vote, which is widely popular, is part of a more general movement in the U.K. to ditch the ECHR. The convention was in fact largely drafted by British lawyers after the second world war, and the U.K. was the first country to ratify it. It was happy to do so, since the convention was widely viewed at the time as a "lowest common denominator" document, unnecessary in the U.K., whose citizens were fully protected by the magnificent common law (one reason why British citizens were not allowed to appeal to the court in Strasbourg until 1966). Yet Britain does not in fact have a great record with respect to the ECHR, as the common law keeps on being found to have gaps in it. Examples include the treatment of IRA prisoners, the automatic life sentence for murder, and phone tapping (the famous case of Malone, where the courts were appalled to discover that decisions about phone tapping were taken by a functionary in the Post Office!). One of the most active pressure groups for formally incorporating the ECHR into British law were the judges, who were increasingly annoyed at having to give common law judgments that they knew would be subsequently overturned in Strasbourg.

The Human Rights Act, which incorporates the convention, says that British courts must "take into account" the decisions and jurisprudence of the European Court of Human Rights. What does that mean? Well, if the judgment is clear - as the Hirst judgment was - it means that they have to enforce it. Members of Parliament active in last week's debate seem to believe that the convention is a sort of a la carte menu, that signatory countries can dip into as and when they like. It is not. The whole point about signing up to such a thing is that it binds a country to the court's decisions, even if some of those decisions make for uncomfortable reading.

As with other matters European, the U.K. is making a bit of a mess of things.

Walter Blotscher