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25 October 2012
“IF YOU BREAK THE LAW, YOU CANNOT MAKE THE LAW”
Politicians of all stripes in all countries love to go banging on about law and order.
That’s understandable: they make the law and they order you, the pleb in the street, to obey it.
That’s why it’s called law and order.
And that’s why politicians of all stripes insist loudly and clearly – at least in public – on the prime importance of obedience to the law.
But here’s a funny thing.
In Britain jailbirds have no right to vote in elections.
It’s part of their punishment.
All well and good, you might think.
You see Britain happens to belong to a body called the Council of Europe, which has 47 member states with a total population of 800 million.
This is the body – not to be confused with the smaller European Union (27 member states and a population of 500 million) – set up after World War II to promote democracy and respect for human rights.
One of the key organs of the Council of Europe is the Strasbourg-based European Court of Human Rights – again not to be confused with the European Union’s European Court of Justice in Luxembourg – whose rulings all member states undertake to obey when they join the council.
For the member states of the Council of Europe, the European Court of Human Rights is their supreme court so far as the law on human rights is concerned. Its decisions take precedence over any decision taken by a court in the member states.
So what’s all this got to do with the right of prisoners to vote?
Well, the European Court of Human Rights ruled – as far back as 2004 – that a blanket ban on the right of prisoners to vote was contrary to European human rights law.
The issue has been raised repeatedly in the court since then but in all cases the court has ruled that it is unlawful to deprive all prisoners of the right to vote.
It is now 2012 – eight years after the court’s initial judgment – and the United Kingdom is still refusing to bow to the court’s authority and accept this ruling.
UK Prime Minister and Tory Party leader David Cameron told the House of Commons yesterday 24 October 2012: “The House of Commons has voted against prisoners having the vote. I don’t want prisoners to have the vote and they shouldn’t get the vote.”
He was prepared, if it helped, to have another vote on the issue in the House of Commons “to help put the legal position beyond doubt” but added: “No one should be in any doubt. Prisoners are not getting the vote under this Government.”
However, the legal position is already beyond doubt: Britain must obey the judgment handed down by the Court of Human Rights – regardless of what the British Parliament thinks and regardless of what the British courts decide.
Moreover, this appears to be what Dominic Grieve, Cameron’s own Attorney General – the Government’s chief law officer – believes as well.
In a report in the London Guardian today, Grieve is reported as telling the Justice Committee of the House of Commons that he took the view that the Government should comply with the court’s ruling.
According to the newspaper, he said that the blanket ban was in breach of the European Convention on Human Rights (which constitutes the basic human rights legislation interpreted by the European Court of Human Rights).
“The UK government is an adherent to the convention and the convention is one of the international legal obligations,” he is reported as saying.
“Inevitably, if we were to be in default of judgment of the European Court of Human Rights, it would be seen by other countries as a move away from human rights norms.”
It would also set a bad example to countries where human rights were poorly respected, he reportedly suggested.
Moreover, if Britain was in breach of the court’s decision, it would be open to prisoners to sue the Government for compensation. The UK might even be expelled from the Council of Europe.
He noted too that the court had given the UK government great flexibility as to how it implemented its ruling.
In February 2011 the House of Commons, by 234 votes to 22, adopted a motion backing the current regulations regarding the rights of prisoners to vote – regulations which the Court of Human Rights has ruled are illegal.
The speakers in the debate on the motion included David Davis, a prominent backbencher belonging to the Prime Minister’s own party, who nevertheless told the House: “If you break the law, you cannot make the law.”
This view was countered by former justice secretary Jack Straw, a Labour Party hardliner close to ex-Prime Minister Anthony Blair. Straw is reported as arguing that the issue of prisoners’ voting rights was by no stretch of the imagination a breach of fundamental human rights but was a matter of penal policy which the minority judges at the court said should be left to the UK Parliament.
Straw omitted to emphasize, of course, that the minority judges were overruled by their peers: in the absence of unanimity, it is the judges who are in the majority who decide what is legal.
The UK Government has been given until 22 November 2012 to react to the court’s ruling.
The UK Government and the House of Commons appear to be trying to set an interesting legal precedent: obey the law if it suits you. The criminal community at large is said to be studying this development with interest.
You might perhaps care to view some of our earlier posts. For instance:
1. Why? or How? That is the question (3 Jan 2012)
2. Partitocracy v. Democracy (20 July 2012)
3. The shoddiest possible goods at the highest possible prices (2 Feb 2012)
4. Capitalism in practice (4 July 2012)
5.Ladder (21 June 2012)
6. A tale of two cities (1) (6 June 2012)
7. A tale of two cities (2) (7 June 2012)
8. Where’s the beef? Ontology and tinned meat (31 Jan 2012)
Every so often we shall change this sample of previously published posts.