Lawcast 178: Carl Gardner on the prisoner votes issue and where we go now
Today I am talking to Carl Gardner, ex government lawyer, barrister, and author of The Head of Legal blog about the vote in the House of Commons yesterday on prisoner votes.
The Sun’s headline screamed this morning… IT’S UP EURS!….and we had the spectacle yesterday of 234 lawmakers voting to break the law (the European convention law that is….and defy the European Court of Justice)….as The Sun said…. “REMEMBER the date. Thursday, February 10, 2011 was the day Britain’s Parliament finally stood up to Europe over human rights madness.”
We look at the vote, what the government could do now and the reality of ‘thinking the unthinkable’ and come out of The European Convention and the jurisdiction of the European Court of Human Rights
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Useful links:
Carl Gardner’s blog post: MPs vote on prisoners’ votes: how to square the circle
Rosalind English of 1 Crown Office Row writing in The Guardian:
Withdrawal from the European court of human rights is not a legal problem
Criticisms of the Policy Exchange report distracts from legitimate points made in a political debate masquerading as a legal one
Lawcast 169: Prisoner votes – An analysis of Hirst and Frodl with Carl Gardner
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I suspect this will be a delaying tactic. One last shot of the cannon afore the flag of surrender is (as Mr Hirst so irritatingly goes on about) hoist upon the pole of cowering obedience.
I for one am pleased we fired a broadside into the good ship ECHR even if the shells were all blank and will have no impact.
There is something very British about a final ‘Up Yours!’ before we trudge into the PoW camp whistling Colonel Bogey.
[…] I talked to Charon QC on the issue of prisoners’ votes, following MPs vote yesterday in favour of defying the European Court of Human Rights, and […]
As usual a very informative podcast from charonqc and headoflegal – many thanks.
Extraordinary but not surprising to hear Jacqui Smith admit on Question Time that the-then Labour Government “kicked this into the long grass”, left the mess for someone else to clear up, and “this was the right thing to do.”
Good Podcast. Carl made excellent point re the need to be involved in the Convention so that we maintain as much liberal democracy as possible in the world.
I’m interested in the power for ministers under s. 10 of the Human Rights Act to amend the legislation by order.
Is it conceivable the government could use this power in defiance of the House, or could Parliament veto it?
I don’t that’d work, Tom. Schedule 2 to the HRA makes various provision about remedial orders under s. 10, and requires a positive vote in each House of Parliament before an order can take effect. I don’t think ministers could lawfully say it’s an urgent case after 5 years’ delay, but even if they did, they’d still require a positive vote of each House within 120 days.
So no, Parliament has control of that.
Thanks Carl.
Tom (iow) – good question!
ukliberty – I fear that there was a fair amount of long grass kicking in the last government…and may be in this one on other matters……. perhaps I should have a look at the manifestos again…. and correlation!
According to one newspaper Cameron has said that he would rather pay out money than concede on this issue. Does he think it out? Just await the headlines when the first murderer etc. gets a payout. Of course, this is not going to be “his” money anyway but it shows that there is money to throw away if it suits.
http://www.dailymail.co.uk/news/article-1356037/Prison-votes-backlash-EU-deeply-disappointed-UK-MPs-historic-decision.html?ito=feeds-newsxml
Thursday’s debate has probably made it very difficult to get anything thro’ the Commons for some time.
Government’s next moves awaited with interest. The UK Bill of Rights has suddenly come back on to the political radar.
[…] the Guardian, Withdrawal from the European court of human rights is not a legal problem, and the lawcast with Charon QC and Carl Gardner also makes for very good listening […]
On what basis would a judge work out the damages for the loss of a vote? It is, after all, rather difficult to show any tangible loss, especially as, in all but a few constituencies, the odd few votes won’t have made any difference. Of course the government would incur legal costs. There were also those that found they were unable to vote at the last general election simply because the polling stations couldn’t cope. Aren’t they just as entitled to damages as a prisoner denied a vote?
In any case, it might be beyond the power of any government to get a majority in parliament on this subject, and it can;t be done by executive action. It’s likely that any vote would be highly divisive and you can guarantee that it would dominate the headlines for a long time. Would it be a free vote? If it was whipped on the government, what would the opposition do? It’s quite possible they would vote against based on some “principled” opposition to the details. That way they might inflict a defeat without the bad headlines.
In the European Court of Human Rights it is possible to obtain “just satisfaction” as opposed to damages. Just satisfaction might be simply that the court has found in your favour. The Hirst No 2 case shows this.
It was thought that under English law it might have been possible to obtain damages where people had been unable to vote due to poor organisation by returning officers. The Electoral Commission looked into the poor organisation in some places. I have not heard of any actual claims for damages being made.
Not yet clear what the government will now do to honour its international law obligation. There may be a spectrum of possibilities. At one extreme do nothing and let the Council of Europe take infraction proceedings? This would be embarrassing for the U.K. internationally but might let Ministers blame matters on “Europe” when they finally, at the 11th hour, comply. The opposite end of the spectrum is to concede and allow all prisoners the vote. Don’t quite see how they will be able to do that in the light of the Commons vote in the Straw-Davis motion. In between options undoubtedly exist but is is not entirely easy to identify those which will definitely be “Strasbourg-proof.” Interestingly, Strasbourg declined in the Hirst case to give specific indications of what would meet the criteria they set out.
Strasbourg says (a) voting is a RIGHT and not a privilege; (b) no blanket ban; (c) States have a wide margin of appreciation; (d) there has to be a legitimate aim for a ban; (e) must be a discernible link between the conduct of the person and the loss of a vote; (f) means adopted to meet a legitimate aim must be proportionate; (g) the sanction should be imposed by the judiciary.
One has to agree with (a). In the UK it is only by Act of Parliament that we may vote at all. However, in modern democracies it is (should) be regarded as a fundamental right though, as Strasbourg recognises, not an absolute right. As for (b), the UK maintains such a ban. (c) is interesting as to just where the boundaries of the margin lie but it would seem that a sensible “middle way” solution is possible. Legitimate aims (d) seem, according to Strasbourg iteslf, to include prevention of crime and enhancing responsibility and respect for the law. The discernible link (e) is not easy but seems to narrow considerably the scope for States to impose a voting ban. Some States refused a vote to those who had collanborated with the enemy in World War 2. Few would, I think, argue against that. There would also be a link between certain electoral offences and voting. As for crime generally, it is harder to make a link between the offence and loss of a vote but for serious crime it is reasonable to argue that the social contract has been broken so seriously that loss of a civic right for a reasonable time is acceptable. Even for life might be reasonable in some cases – (e.g. those guilty of murder for terrorist reasons etc). That brings us to (f) – proportionate means. The more serious the offence the longer the ban would be a basis of proportionality. The sanction could be a judicial decision (g) and this could be applied positively (i.e. allow a vote unless decided otherwise) or negatively (no vote unless decided otherwise. Clearly, there are pros and cons to those options.
It is not an easy conundrum but ought not to be beyond the wit of lawyers to devise a working solution. Of course there must be a will to do this.
Leaving the legal and ethical debate to one side for the moment , I am curious as to the practical implications of a prisoner having an equal right to vote as a free citizen.
As a citizen although my vote is secret, the fact that I am eligible to vote is public domain. My name and exact postal address is on record permanently since I first joined the register.
It would surely be expected that a prisoner’s priviledge of anonimity would be given up if the prisoner was to apply to be included in the “public” record of electors? It would surely be unthinkable in a democracy that “secret” voters were allowed to vote in a public election?
Rights and obligations, Action and Reaction, Portia’s pound of flesh etc?
deebel – very interesting… very. I suspect that prisoners will have to be listed by name (or number?)
I don’t know the answer to that one.
i am informed that withdrawal from the whole european human rights framework is and has been tory manifesto policy.
this was a surprise.
spose i should have a look and see.
if i gave a shit. i mean the bastards are going to do just what they fancy for five years if we don’t get enough people on the streets.
people may say that’s democracy for you but there was no trumpeting that i heard of fixed term parliaments, reduction in number of constituencies etc. i spose their justification is that we will get a referendum on the constitutional points which no gov has had the balls to offer previously.
but exiting the whole european human rights shebang and then the bill of rights nonsense. hmmm…