Strasbourg has spoken, the case of prisoner voting is closed

by Professor Conor Gearty FBA

29 Oct 2012

Last week the UK government was grappling with a ruling from the European Court of Human Rights that banning all prisoners from voting breaches their human rights. Professor Conor Gearty FBA explains why the Labour Party in opposition should make a legally and morally correct move by supporting the European Court’s decision.

Are the British Labour Party short-term opportunists or long-term strategists? The Party’s reaction to the prisoner voting debacle will tell us which it is.

As is well known, the European Court of Human Rights has now ruled on a number of occasions that an inflexible, universal bar on the participation of prisoners (convicted and unconvicted) in elections is a breach of their human rights, in particular the obligation on member states (to be found in Article 3 of the First Protocol) to ‘hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. Never mind that this does not look like a ‘right’ for individual prisoners, or that such a reach for the article was hardly on the mind of its drafters in the early 1950s, or even that the British courts had found no breach when the matter had come before them, now over ten years ago. As the late law lord (and Supreme Court judge) Lord Rodger of Earlsferry so succinctly put it in an earlier controversial case, ‘Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.’

This is the position taken by the Attorney General Dominic Grieve. The referee has intervened, the card has been issued, it is time to promote legislation securing compliance. The alternative would be the coming to court of a vast array of legal actions for compensation already launched by prisoners and grievous (if not indeed fatal) damage to Britain’s international self-image as a human rights-respecting, law abiding state. Many times in the past a British government has hated Strasbourg decisions that it has nevertheless quietly implemented (and Tories too: it was they who paid the legal costs of the solicitors behind the successful effort to have the Gibraltar IRA killing declared a breach of their human rights).

Why is this case different? Certainly there has been a tabloid press campaign – there always will be when the issue is one of alleviating the plight of prisoners. And two senior parliamentarians from Labour and the Conservatives, Jack Straw and David Davis launched an effective campaign in 2011, debating the issue in the House of Commons, where David Davis (perhaps with a deep, but if so certainly a subtle, sense of irony) declared that ‘if you break the law, you cannot make the law’.

But the core of the problem has been in the reaction of successive governments. The rot was started by the Labour administrations of Tony Blair and then Gordon Brown who were the first to have to manage the effect of the first Strasbourg ruling on the matter in 2004. But the current Prime Minister has taken his hostility to extremes, confirming the denial of votes to all prisoners in parliament on the very day that the news of his Attorney-General’s proposal was being promoted.

David Cameron is famously not a lawyer but rather an ad man. As far as I know the PPE degree at Oxford (at which – as with many others every year – he excelled) contains no component at all which explains how power is often constrained by law. Every incoming administration finds that there are these two large problems at the core of governing: ‘the rule of law’ and its guarantor, the ‘independent judiciary’.

One of Mr Cameron’s chums from PR, Steve Hilton, was briefly a ‘policy guru’ until he went off in high dudgeon after his ideas were reportedly rejected on the ground that they would have required the PM to break the law. Perhaps the PM shares this sense of fury that something called the law can be allowed to get in the way of his vision? If so hopefully there is someone close to the Prime Minister who can explain why law matters or can maybe even persuade him to read the late Lord Bingham’s Rule of Law (which is very short).

This takes us back to Labour. It looks likely that the government is to table a motion in the House of Commons ruling out compliance with the Strasbourg ruling. This may seem to be a clever wheeze in that it will force Labour to take a stand one way or the other on an issue about which they are unsure; but the Party should be unafraid to do so.

The right response is straightforward. The Strasbourg judgment should be followed because it is right at two levels: as a matter of law that needs to be followed and as a matter of political morality. The new chair of the Equality and Human Rights Commission and former president of the British Academy Baroness Onora O’Neill made exactly the latter point with great succinctness during her recent interchange with the Joint Committee on Human Rights on 16 October 2012. The Labour Party should agree with her and with Mr Grieve – and damn the tabloids to do their worst. Future leaders are not forged out of hapless followers.

Conor Gearty FBA is Professor of Human Rights Law at LSE and a member of the British Academy steering group of Human rights and the UK constitution. He is also a barrister and co-founder of Matrix Chambers, and has published extensively on human rights, terrorism and civil liberties.

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