Liberal Democrats have always been proud defenders of the rule of law. As our manifesto stated in 2010, the values of ‘fairness and the rule of law’ lie at the heart of our foreign policy. However, just as we call on other states such as Burma, Belarus and Zimbabwe to respect the rule of law, so we must be ever vigilant that there is no weakening of this fundamental principle at home. The Liberal Democrat policy on the Justice and Security Bill at conference in September was a powerful reminder to the leadership on how seriously we, as a party, take this issue.
With this in mind, I was interested to read over the weekend that the Ministry of Justice plans to publish draft legislation this week, presenting Parliament with a range of options on how to respond to the European Court of Human Rights’ judgments holding that a blanket ban on all prisoners from voting was a violation of the United Kingdom’s obligation to hold free and fair elections. I am not particularly interested in the politics of the issue; I think cogent arguments can be made both in favour and against the notion that prisoners – or, at least, some prisoners – should be entitled to vote. Few prisoners are clamouring for this right and, I suspect, few would exercise the right in practice were they so entitled. The issue for me is more one of principle.
In 1951, the United Kingdom ratified the European Convention on Human Rights. Article 46(1) of that Treaty provides that
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
This Article is crucial. Were states allowed simply to pick and choose which judgments they implemented, the work of the Court would be pointless. Law – including international law – is only effective if parties are bound by it and if there are sanctions for non-compliance. The Labour government’s disregard for international law during the invasion of Iraq was a national embarrassment. Under the rule of law, all of us – individuals and nations alike – are bound by rulings of courts whose jurisdiction we are under. How can we put pressure on other states to abide by international law – including international human rights law – if we ourselves ignore judgments we do not agree with? Refusing to implement the judgment of the European Court of Human Rights on this issue weakens our credibility and our influence on human rights across the world.
For Liberal Democrats, the choice should therefore be simple, for reasons of principle as well as pragmatism. However, when Parliament last debated this issue in February 2011, just ten Lib Dem MPs voted against a motion calling for the judgment to be ignored. This was hugely disappointing. Even more disappointingly, four Lib Dem MPs – Stephen Gilbert, Mike Hancock, John Pugh, and Bob Russell – actually voted in favour of the motion. This is entirely unacceptable. We are a party that supports the rule of law and is unwavering in our commitment to the European Convention on Human Rights. We stand for what is right, even when it is unpopular. The Court has made a judgment. Whether we agree or disagree with it, we have a legal obligation to implement it. There are many ways to do this and no doubt the draft legislation will include a number of potential options. Liberal Democrat MPs cannot and must not support the status quo. We alone of the three major parties have always defended international law and the rule law. We have done so when it was easy, such as over the war in Iraq. We must continue to do so, even when, like now, it is difficult.
* Richard Wingfield is a Liberal Democrat member from Vauxhall and works as a lawyer for a human rights organisation.
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14 Comments
I think the essence of the problem is encapsulated here:
“The Strasbourg court has to a limited extent recognised the fact that while
human rights are universal at the level of abstraction, they are national at the
level of application. It has done so by the doctrine of the ‘margin of
appreciation’, an unfortunate Gallicism by which Member States are allowed a
certain latitude to differ in their application of the same abstract right. Clearly,
that is a step in the right direction. But there is no consistency in the application
of this doctrine and for reasons to which I shall return in a moment, I do not
think that there is a proper understanding of the principle upon which it should
be based. In practice, the Court has not taken the doctrine of the margin of
appreciation nearly far enough. It has been unable to resist the temptation to
aggrandise its jurisdiction and to impose uniform rules on Member States. It
considers itself the equivalent of the Supreme Court of the United States,
laying down a federal law of Europe. […]
The court treats the margin as a matter of concession to Member States on the
ground that they are likely to know more about local conditions than the judges
in Strasbourg. In other words, they assume that in principle they are competent
to decide any question about the law of a Member State which is arguably
touched by human rights but sometimes abstain from exercising this vast
jurisdiction on the ground that it is something which the local judges are better
equipped to do. What I think they should recognise is that we are concerned
with a matter of constitutional competence, that is, whether they have the right
to intervene in matters on which Member States of the Council of Europe have
not surrendered their sovereign powers.22 ”
http://www.parliament.uk/briefing-papers/SN06277.pdf
and here (specifically in reference to prisoner voting:
“The case of prisoners’ voting rights is particularly instructive. Strasbourg claimed that the UK ban breached the ECHR – but the relevant article contains no mention of universal suffrage. This omission is not an accident: it was won by British negotiation in 1949, a fact that was ignored when Strasbourg ruled. Since that ruling, concerns about judges assuming a legislative function have been increasingly widely expressed.”
http://www.telegraph.co.uk/news/uknews/law-and-order/8907583/Michael-Howard-Parliament-must-redefine-human-rights.html
Does the ‘rule of law’ in this particular case lead to justice? I would say not!
If the prison system purely existed to punish, then depriving an inmate of ALL rights may well be considered as appropriate, but it is not, and what kind of person would then be released upon society at the end of their sentence?
I’m actually quite indifferent, about the prisoner vote issue. But this issue goes to the heart of eurosceptic angst. To eurosceptics, this begs the bigger question.
Who has sovereignty, with regard to domestic legal issues?
Our elected Parliament, or an unelected Strasbourg?
Eurosceptics, wholeheartedly agree that some issues at the world level, properly, require world level agreements to maintain some semblance of international stability. Yet Strasbourg, constantly delve, (and some would say meddle), at domestic level issues, that have eurosceptics incandescent, at the sheer audacity of these unelected people, “…telling us, what we can and can’t do..”
You may not wish to agree with this analysis, but then, reflect on why Corby went from a standing start to 14% UKIP. Is Corby full of short-sighted ‘little Englanders’, or are those 5108 UKIP voters simply saying yes, we are happy to trade, share resources and pool our agricultural assets with Europe, but keep your nose out of our (democratically elected), affairs, and step away from OUR sovereignty?
“Is Corby full of short-sighted ‘little Englanders’, or are those 5108 UKIP voters simply saying yes, we are happy to trade, share resources and pool our agricultural assets with Europe, but keep your nose out of our (democratically elected), affairs, and step away from OUR sovereignty?”
You do realise that the European Convention on Human Rights has nothing to do with the EU, don’t you?
“yes, we are happy to trade, share resources and pool our agricultural assets with Europe, but keep your nose out of our (democratically elected), affairs, and step away from OUR sovereignty?”
A position i am happy to endorse.
Chris : The point is about who has sovereignty ?
Let me see if I can put it a slightly different way. A thought experiment that you might find an amusing irony?
~ Strasbourg Judges say prisoners must be allowed to vote.
~ Parliament accepts that judgement.
~ A prisoner votes for a particular political candidate.
~ That candidate (of the prisoners choice), wins and becomes an MP.
~ Fortuitously, the MP is of the same ideology as the prisoner, on a particular issue.
~ A Bill arises in parliament, on this particular issue, and the MP votes in sync with the general views and wishes of the prisoner.
~ The Bill passes the Parliamentary vote.
~ Strasbourg judges, say sorry, we don’t care that you (prisoner), have exercised your lawful vote, for an MP who in turn has exercised her lawful vote in the House of Commons, and that your elected Parliament has legally endorsed that vote into UK legislation.
~ We have supremacy, and our vote,.. means that your vote is irrelevant !
So what is the point, of this centuries old, legal, democratic voting process for the prisoner, or anyone else for that matter, if somebody (EU or otherwise), can say NO.?
I am a very simple soul and I hold to a very simple principle – if you don’t like a law work to change it but don’t break it. No-one should be able to pick and choose which laws or legal decisions they comply with. I am looking forward to the day when a miscreant uses the “Cameron Defence” ie I didn’t agree with that particular bit of law so I am not bound by it.
John
Of course your argument makes sense, if you believe that respecting treaty obligations constitutes an unacceptable loss of sovereignty. But I think such a belief makes life difficult in the modern world. In fact that goes for the medieval world too, and even as far back as antiquity.
And regarding the point about ‘Strasbourg’, I just thought I’d check, as many people assume that the European Convention on Human Rights is part of the EU, and I couldn’t see any acknowledgment of the distinction in your comment.
No-one yet in this thread has mentioned the flood of (probably successful) claims that are likely to shower upon us as UK taxpayers if we totally flout the will of the European Court of Human Rights. This can be avoided by passing a measure to allow limited electoral participation to prisoners – say under 6 months sentence. Postal votes of course.
To those who bang on about even minor criminals needing to be stripped of this right what about criminals whose punishment is not a prison sentence. There are some quite major offences which result in huge fines – no loss of voting rights there? As so often is the case, arguments based on so-called principle are trumped by pragmatism.
If I could respond to some of the comments here.
Jedibeeftrix, R Uduwerage-Perera , and John Dunn, it is certainly arguable – and I think this is the argument of many people – that the European Court of Human Rights should not pass judgments on this issue i.e. enfranchisement and disenfranchisement and that this is an issue for national parliaments to make. I understand that. There are a numner of entirely legitimate ways to proceed on that basis. The first would be for the United Kingdom to make a declaration that it does not consider itself bound by Article 46(1); the second would be for the United Kingdom to withdraw from the European Convention of Human Rights; the third would be for the Council of Europe member states to amend the Convention (either inserting an Article on the jurisdiction of the court or to amend the right to free and fair elections in Protocol 1).
However, the United Kingdom has not done any of those (I suspect that the third would be near impossible as the rest of the Council of Europe are quite happy with the court’s jurisdiction) and until any of those does happen, the United Kingdom is bound as a matter of international law to implement the court’s judgment. If we, as the United Kingdom, refuse to implement a judgment because we do not think the court should have made it, then we set a precedent for every other country in Europe – including Russia, Ukraine, Turkey and others – to say exactly the same thing when a judgment is made that affects them and which they do not want to implement. I would be ashamed beyond belief were one of those countries to one day say “We are not going to follow the court’s judgment against us just as the British do not follow judgments against them”.
As a specific response to your later point, John, the Court can only pass a judgment against the United Kingdom if we have breached the European Convention on Human Rights. Otherwise, Parliament is free to pass whatever laws it likes. While we are part of the ECHR, we have given part of our sovereignty to the Court and we can take it back any time we like.But it has not done so and until we leave the Convention, we cannot complain if the Court exercises the sovereignty that we – as the United Kingdom – gave it when we signed up to the Convention.
Fiona, I entirely agree with you. If I break a contract I have signed with another person then I cannot complain if the person takes legal action forcing me to comply with my legal obligations, or if I am punished by a court for breaking the contract. Similarly, the United Kingdom cannot enter a contract (treaty) with other countries and then complain when we break that contract (by not abiding by the terms of that contract, here Article 46). If the UK thinks it should be able to break its legal promises without consequence, but that the rest of us should not, then it spits in the face of the rule of law which says that people and nations alike are bound by the law.
@ Chris – “Of course your argument makes sense, if you believe that respecting treaty obligations constitutes an unacceptable loss of sovereignty. But I think such a belief makes life difficult in the modern world.”
I think the point of my first post is to note that the ECHR has gone beyond the meaning of the original treaties.
@ Richard – “The first would be for the United Kingdom to make a declaration that it does not consider itself bound by Article 46(1)”
Is this one of the options being pursued by parliament?
@jedibeeftrix I don’t think so. The government was asked about this by Lord Lester (Lib Dem) on 5th November 2012. Lord Lester asked the government:
1. Whether it accepted the obligation imposed by Article 46 of the European Convention on Human Rights to abide by final judgments of the European Court of Human Rights.
2. Whether there have been any occasions since the United Kingdom ratified the European Convention on Human Rights in 1951 on which Her Majesty’s Government have refused to abide by a final judgment of the European Court of Human Rights.
3. Whether they intend to remain party to the European Convention on Human Rights.
(Article 58 of the Convention allows members to leave by giving six months’ notice).
Lord McNally (also a Lib Dem), responding for the government , said:
“The United Kingdom has never refused to abide by a final judgment of the Strasbourg Court. The Government have no plans to denounce the European Convention on Human Rights.”
http://www.theyworkforyou.com/wrans/?id=2012-11-05b.177.1&s=Article+46#g177.2
thank you richard.