Giving prisoners the vote might be unpopular, but defying the European court of human rights would be criminal
John Hirst is not a sympathetic character. The 59-year old hacked his landlady to death with an axe in 1979, and was convicted of manslaughter after he successfully pleaded diminished responsibility on the basis of a personality disorder that rendered him amoral. Although Hirst's much discussed European court of human rights litigation "Hirst v UK" has caused an unprecedented row about the nature of the UK's relationship with the court in Strasbourg, that the man himself makes an uncompelling spokesperson for a cause is undeniable.
Hirst claimed that the prohibition on voting for prisoners was a violation of his fundamental rights. In 2005 the European court of human rights agreed – sort of. It said that the UK's law – a blanket ban on prisoners voting was wrong. When the government asked the court for guidance as to where exactly the line could be drawn in determining which prisoners should be given the vote and which shouldn't, the court declined to provide it.
"It is primarily for the state concerned to choose… the means to be used in its domestic legal order," the court said.
In other words, the court said that while a blanket ban is a violation of the right of the state's obligation to take a proactive role in facilitating free elections, how UK law should change to remedy the situation is for the democratically elected legislature – parliament – to decide.
You wouldn't know that, given the frenzied debate about the court encroaching on our legal system this week. Faced with the prospect of unpopular legislation being demanded by some "Europeans", all three branches of state – the government, MPs, and judges – have obediently taken their cue to start Strasbourg-bashing. Next up is a backbench Commons debate tabled by Conservative MP David Davis, demanding that the UK should defy the court and continue to deprive all prisoners of the vote.
Given that David Davis is probably best known outside parliament for his track record in defending civil liberties, it is one of many ironies about a Westminster movement against letting prisoners vote that he should be a key protagonist. The circus surrounding prisoners voting rights is all part of the upside-down world where the Tories stand up for human rights, and otherwise civil liberties-defending politicians continue to resist them.
And then there's the Labour party. The former government presided over the deadlock in new legislation to implement the court's ruling for five years whilst they were in power. Now a briefing circulated by Jack Straw to the parliamentary labour party, which I've seen, is the clearest example yet on how much the party has lost its way on the question of civil liberties.
Straw says it's ok to change the law on the court's say so when it comes to "genuinely important issues like phone tapping", but that the issue of prisoner's voting is "very different". He then goes on to echo many of the allegations in the Policy Exchange report earlier this week, such as the idea that European judges lack competence, and that changing the law on prisoners voting would be to "allow the court to extend its remit far beyond anything that was ever anticipated".
On the one hand there is the question of why, if Straw is so determined to defy the Strasbourg ruling, his government wasted public time and money on two protracted consultations on how to give prisoners the vote.
Depriving prisoners of the right to vote is part of an out-dated mentality of social exclusion, deliberate dehumanisation and "civic death" which should have disappeared with the Victorians and certainly should not have now found new favour among labour politicians.
But we all know that politicians, including those on the left, are willing to abandon human rights principles when to do so seems in accordance with public opinion. As Lord Mackay pointed out in his evidence to the constitutional reform committee, published in a report this week, the same thinking would have seen the death penalty still on the statute books. "The problem is that if you go along with public opinion you may well find yourself with oppressed minorities," Mackay said.
The European court on human rights exists for exactly these situations – where politicians lack the vision, courage or wisdom to provide unpopular people with the level of human rights protection that is accepted as part of an emerging international standard. As history has repeatedly shown, in the end that standard tends to be bigger than the small-minded politicians of the day. But that would be to think long-term, and as the Jack Straws of this world like to remind us, that is not what they do.