Britain's mounting fury over sovereignty

DAVID Cameron decided to ride the tiger of populist anger today, more or less urging Conservative MPs to vote for an amendment challenging a ruling by the European Court of Human Rights (ECHR), in which the court's judges objected to Britain's blanket ban on voting by those serving prison sentences.

Mr Cameron has a track record of being both bold and lucky as a politician. If he is lucky then he will leap nimbly from the tiger's back, pocket a massive House of Commons vote in favour of the motion, which is non-binding, and tell the European court that he has a problem enforcing their ruling: namely that his sovereign parliament strongly opposes the idea of votes for prisoners. At which point, if he continues to be lucky, the ECHR will fold or do a minimal deal allowing the vote for only the most minor offenders serving very short sentences: after all, its justices raised three big objections to the blanket ban on prisoner voting, and one of them was that Britain's parliament had not debated the issue properly. By tonight, that last objection will have been dealt with.

(A brief point of information here. The ECHR, which sits in Strasbourg, is nothing to do with the European Union. Set up in 1959, it is the court that polices the European Convention on Human Rights, an international treaty drafted shortly after the horrors of the second world war, and which binds the 47 member nations of the Council of Europe).

If Mr Cameron is less lucky, the ECHR will stick to its guns and insist that very large numbers of prisoners are given the vote (British government lawyers currently guess that prisoners serving four years or less might have to get the vote to satisfy the ECHR). In a worst case, the ECHR not only continues to order Britain to let prisoners vote but hands compensation to all prisoners currently serving in British prisons. During today's debate, the attorney general Dominic Grieve noted that there are currently 73,000 people behind bars at the moment, and each could in theory win £1,000 or £1,500 in compensation and costs. Until Mr Cameron started his tiger-riding, that risk of paying out many millions of pounds to old lags was his government's main argument for making the smallest possible concession to satisfy the ECHR.

As late as yesterday, the justice secretary and Lord Chancellor Kenneth Clarke (a rumpled barrister type and hate figure for those on the Tory law-and-order right) was to be heard saying that the government would have to abide by the judgement of the court, and insisted that the idea that rapists and murderers would get the vote was "alarmist nonsense". But, he went on: "I think the Prime Minister, like everyone else accepts like everyone else that Government complies with its legal obligations."

Soon afterwards the prime minister decided to co-opt the rebellion gaining unstoppable momentum in the Commons, announcing: "I don't see any reason why prisoners should get the vote. This is not a situation I want this country to be in."

That was interpreted as the prime minister contradicting Mr Clarke. That underestimates the care with which Mr Cameron chose his words, I suspect. Mr Clarke thinks Mr Cameron will bow to his legal obligations. Mr Cameron does not want the country to have to give prisoners the vote. Those two statement may yet prove to be perfectly compatible.

The problem for Mr Cameron is that the tiger of anti-European populism has been well and truly unleashed, and may prove hard to re-tether should it become clear that Mr Cameron (who has said that the idea of prisoners voting makes him "physically ill") is going to endorse some sort of fudge. The Daily Mail, tribune of Tory middle England, splashed today with the banner headline:

STAND UP FOR BRITAIN'S RIGHTS

under the sub-head:

By overturning Europe's ruling that British prisoners must have the vote, MPs today have a historic chance to regain control of OUR laws

If tigers can have perfect storms, this is one. By huge majorities, Britons oppose giving prisoners the vote. Most Britons also think that the House of Commons should decide this question, not "unelected judges" (as the papers always call ECHR justices, as if British judges were elected). What is more, these justices are from Europe (the EU/Council of Europe distinction is deemed irrelevant), and in some cases are law professors sent to Strasbourg by their home governments, rather than being trained judges. Some are from small countries, and some are from rather nasty countries. In the revealingly contemptuous words of today's Mail editorial:

The "one country, one judge" rule means that Liechtenstein, San Marino, Monaco and Andorra each have a seat on the bench, despite their combined populations being smaller than the London borough of Islington...Nine judges, including those from Azerbaijan and Russia, are from national internationally categorised by Freedom House as "not free" or "partly free". Yet they are allowed to dictate the laws of Britain—a country with 60 million people, which invented the concept of human rights hundreds of years ago.

As if all this were not enough, the ECHR is an increasingly activist court, whose rulings draw on the spirit rather than the letter of the convention. Its rulings have at times been calculated to cause anger in middle England, as when they have blocked the deportation of terrorist suspects to home countries where they might be tortured, or ordered compensation for unpleasant criminals arguing, for instance, that prosecutors took too long to bring them to trial. Indeed, the starting-point for this latest fuss was a claim brought against the British government by a man jailed in 1979 for killing his landlady with an axe. That claim was upheld by the ECHR five years ago, but the then Labour government did nothing about it, apparently hoping the politically toxic issue would somehow go away.

At time of writing, the Commons debate was still underway, but it seems certain that with ministers abstaining and Labour saying it opposes votes for prisoners, a huge majority of MPs will back a motion tabled by the former Labour cabinet minister Jack Straw, and David Davis, a right-wing Tory known for Euroscepticism but also a commitment to civil liberties. Their motion is more moderate than some would like.

There have been calls from outfits like Policy Exchange, a centre-right think tank, for Britain to consider withdrawal from the jurisdiction of the ECHR if the court does not agree to major reform. That would probably force Britain out of the Council of Europe, and cause at the least a messy tangle around Britain's membership of the EU (because the EU as a legal entity is bound by the convention in many of its actions).

But the Straw-Davis motion nods to the convention's binding nature on Britain. The key part reads:

[This House] acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

So (deep breath). After that smidgeon of background, what do I think is going on?

1. Though this row is being presented as a push-back against absurd, politically-correct rulings and the horrid idea of prisoners voting, I think that the really revealing fury is centred on Britain's submission to foreign judges. There is a real push underway, strongly supported by Conservative MPs and especially newly-elected Tories, to reassert Britain's sovereignty in some way, any way possible.

The Policy Exchange paper is especially revealing: it essentially argues that Britain should undertake to police tough and far-reaching British human rights laws in its Supreme Court, and then hope that the manifest quality of British courts silences doubters overseas who might be tempted to dub Britain a rogue state. Lest anyone doubt what is really up, the author of the paper begins with a declaration of British exceptionalism, of a sort that would be entirely recognisable to many American readers, but which is rather unusual within the polite confines of Europe:

The starting point for this report is the view that the United Kingdom has a
valuable and relatively rare political tradition unbroken by foreign occupation,
civil war, totalitarian rule or revolution. (Admittedly, the conflict in Northern
Ireland has had some of the features of civil war but thankfully on a lesser scale
than in countries such as Spain.) Because of this tradition, we can afford to have
a truly democratic government. We mean by this a government, no matter the
colour, which the British electorate have good reason to be confident can be (and
often is) removed as a direct result of an election. Because of this, we can afford
to have a powerful executive.
The consequence of this is that assurances of human dignity and well being
emanating from a supra-national institution, including those involved in
promoting human rights, carry significantly less force than in countries that do
not enjoy the same tradition of democratic continuity. Criticism of these bodies
does not stem from any nationalistic motives but from the realisation that they are
remote, unaccountable and, therefore, comparatively inefficient.

This is important stuff. This passage, I think, represents a sighting of authentic, present-day mainstream British Euroscepticism, as believed by most Tory MPs. This is how such MPs solve for themselves the mystery of proud, sovereign nations like France or Germany bowing to nagging from the ECHR: the French and Germans were just not blessed to be born British (many Conservatives will also assert, with more confidence than evidence, that France simply ignores any European court rulings against it, and good on them).

2. I think the ECHR really does have a problem of credibility as an increasingly activist court. Speaking in the debate today, Jack Straw was right when he said:

By extending their remit into areas way beyond any original conception of fundamental human rights the court in Strasbourg is, I suggest, undermining its own legitimacy and its potential effectiveness in respect of the purposes for which it was established

3. But this debate has also made it embarrassingly obvious that the whole question of removing the vote from prisoners has more to do with emotion and arbitrary ideas of punishment, than any coherent theory of citizenship. This newspaper (and this blogger) support voting rights for prisoners.

It is a give-away that the press keeps writing about the outrage of giving the vote to "violent thugs and killers" or paedophiles and sex offenders. This is a beauty contest in reverse: the clear message is that voting is not for the most wicked in society. Well, if wickedness is the criterion, not all the wicked people in Britain are in prison. Some may have finished long prison sentences: I have yet to see even the hardest-line MP calling for prisoners to lose the vote for life. Some may not have broken the law. I dislike the idea of all kinds of wicked people voting, such as those who vote for racist or extremist parties. But Britain has universal suffrage for adults, and nowhere in that legal principle does it talk about quality control.

In a posting on ConservativeHome, David Davis presents his beliefs as if they are settled historical fact, writing:

Prisoners have rights, of course – the right to decent treatment, to be properly fed, clothed, and housed – but we should not confuse them with the more general rights of free British citizens. When you commit a crime which is sufficiently serious to put you in prison, you sacrifice many important rights – your liberty, your freedom of association, and your vote. When you break the law, you cannot make the law.

In the Commons debate, another Conservative MP, Robert Walter, said:

For more than 200 years our criminal justice system has been guided by a simple and sound formula: if you're convicted of a serious crime, you forfeit the right to freedom. If you breach the contract with society and compromise that right, you've compromised the right to participate in civic processes.

A Labour MP,  Michael McCann, pitched his argument still lower, saying: "The public know instinctively when something is right or wrong." I wonder if Mr McCann takes the same view on capital punishment, which retained majority support in public opinion years after its abolition by Parliament.

But things do not become settled legal history just because an MP says them.

An excellent briefing by the House of Commons library traces the roots of the prisoner voting ban back to the mediaeval concept of civic death, and from there to the idea of felons forfeiting their land (which meant that they failed to meet the land-owning test applied to voters before the extension of suffrage in the late 19th century). The Forfeiture Act 1870 removed the rule by which felons forfeited their land, but took the vote from anyone sentenced to more than 12 months in prison. This law was tweaked and modified and indeed toughened so that currently Britain is one of only 13 Council of Europe members with a blanket ban (the others are Armenia, Azerbaijan, Bulgaria, Estonia, Georgia, Hungary, Ireland, Latvia, Liechtenstein, Moldova, Russia and Slovakia).

A lone voice, the Liberal Democrat MP, Tom Brake, noted this afternoon that we do not as a country still believe in civic death:

Prisoners have committed a crime, their punishment is to lose their liberty - that is fair and just. What is then gained by seeking to inflict civil [sic] death on them? In what way does it benefit the victim and does it increase the chance of rehabilitation? What is the logic behind this ban? We do not remove prisoners' access to healthcare or we don't stop them practising their religion, so why should we impose a blanket ban on a prisoner's right to vote?

The Labour MP Denis MacShane went further, telling the Commons that Russia has a blanket ban but in that country criminals also get elected, so is a poor role model, adding:

We are turing our back today on more than a century and a half of prison reform. Someone may enter prison as a criminal. But hopefully they will leave as a future citizen.

The House of Commons briefing includes some fascinating quotes from former prison governors and prison chaplains, supporting the right to vote inside prison, including this one from Peter Selby, former Bishop to HM Prisons:

Denying convicted prisoners the right to vote serves no purpose of deterrence or reform. What it does is to state in the clearest terms society’s belief that once convicted you are a non-person, one who should have no say in how society is to develop, whose opinion is to count for nothing. It is making someone an ‘outlaw’, and as such has no place in expressing a civilised attitude towards those in prison. The notion of civic death is applied selectively. People serving a sentence of any length continue to contribute financially to society from within prison. They pay tax on their savings, capital gains and any earnings they may receive during their sentence. If they are civically alive when it comes to financial contributions, they should be treated in the same way when it comes to basic human rights.

4.In their zeal to take back sovereignty, it is startling how many MPs are ready to contemplate breaking international treaty obligations. Here is David Davis again, arguing that Britain cannot be forced to obey the ECHR:

Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the government. The Strasbourg Court has no power to fine Britain for non-compliance with its judgments.

The Council of Europe has failed to expel Bulgaria for police brutality, Moldova for torture and Russia for atrocities committed in Chechnya, so it is hardly likely to expel a country for standing up for its proper constitutional rights. If Parliament rejects the proposal to give prisoners the vote, the matter will simply remain on the long list of unenforced judgments reviewed by the Committee of Ministers.

5. And here, weary reader, is where I end. Given that even the hardest-line critics of the ECHR want to see human rights law monitored by the British Supreme Court, and given that British judges are pretty hot on upholding human rights, I suspect that British human rights would not deteriorate dramatically were we to take the course suggested by Mr Davis, Policy Exchange et al.

I can tell you what would happen though. A British pull-out from the ECHR, or a British decision to reject a ruling by the court, would give great comfort to just those governments cited by Mr Davis above. The ECHR is attacked in this country for having a huge backlog of thousands of unheard cases. Much of that backlog involves Russian cases, because the ECHR has become—in the words of one old Moscow hand—the "unofficial supreme court of Russia". Look at the list of countries that have flouted ECHR rulings in the recent past. Russia is there, as is Azerbaijan (a country with a noted enthusiasm for jailing journalists, among other things).

The ECHR is very far from perfect. But a country lucky enough to enjoy the rule of law, like Britain, should think long and hard before flouting international treaties which offer perhaps the only hope of legal recourse to people in much less lucky climes.

Above all (and with apologies for a very long posting) though prisons are full of nasty people, they are also full of adult citizens of this country. Declaring that such citizens have lost the moral authority to vote just because they are behind bars is an arbitrary decision, not a principle carved on the granite of the common law. Let them vote.

update at 18.15 The House of Commons backed the motion by 234 to 22 on a free vote. Ministers and opposition frontbenchers abstained.