Prisoners' votes and the ECHR

The resolution from the House of Commons on Thursday was encouraging:

That this House notes the ruling of the European Court of Human Rights in Hirst v . the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; 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.

It was passed 234-22.

Back in November, things weren't looking so good. I wrote at the time that we looked poised to submit, once again, to the will of the EU, but it's worth noting that unlike the European Court of Justice, the ECHR isn't actually an EU body, but rather a Council of Europe creation. The CoE (not to be confused with the Council of the European Union or the European Council!) predates the EU, and includes, among others, Azerbaijan, Georgia, Russia, and Turkey.


With such company, one wonders what penalty we would really face for defying the will of the ECHR.

Today, Daniel Hannan asks "what specific benefits accrue to the United Kingdom as a result of our adhesion to the European Convention on Human Rights?"

It ought to be the most basic question of all, yet it is almost never asked. Most politicians, together with virtually the entire legal establishment, take our continued membership as a datum or given; yet they rarely get round to explaining why it’s so necessary.

The European Convention might once have served a useful purpose. It was drawn up immediately after the Second World War, when there was an understandable determination to secure civic freedoms in countries emerging from tyranny. We can argue about how much the freedom of Europe owed to human rights judges and how much to Nato armies. But even if we accept the importance of the ECHR, why is this a reason for Britain’s continued participation in 2011?

Who has benefited from the ECHR?

IRA terrorists won a number of cases. Illegal immigrants regularly reach for the Convention to overturn repatriation orders. Prisoners have used it to secure their right to have twigs in their cells for use in pagan rituals and access to fertility treatment. And, of course, lawyers have done tremendously well out of it: whole chambers have sprung up, deriving their livelihoods from the growing corpus of human rights jurisprudence.

For the country as a whole, however, the balance is surely negative. It’s hardly as though we suffer from a massive breakdown of civic freedoms from which only a foreign court can rescue us. The ECHR degrades our democracy without enhancing our liberty.

How easy would it be for us to walk away? Hannan explains the tangled mess:

It is true that the European Court of Justice and the European Court of Human Rights are different institutions. The first is attached to the EU (which has 27 member states), the second to the Council of Europe (which has 47). Yet the two institutions are not unconnected. The ECJ has for some time drawn on ECHR judgments as precedent, and the European Convention is now officially recognised in the EU Treaties. The two organisations use the same twelve-star flag, and the EU is in the process of formally joining the Council of Europe – to which all its members belong individually. Indeed, as I discovered the other day, the two bodies are linked even in the most literal way: an underground corridor connects the European Parliament in Strasbourg to the ECHR.

In short, it is by no means clear that Britain could walk out of the Council of Europe without also leaving the EU, a prospect which scares most of our politicians witless. For the country at large, however, leaving the EU would be a delicious bonus.

Schengen aside, we currently occupy the 2nd worst spot in the Venn diagram, inside all EU groups except the Euro [1]. We'd be far better off with Norway and Iceland (inside only the EEA, EFTA, and CoE). Better still would be Switzerland's position (inside only the EFTA and CoE). But best of all would be to exit the whole lot. For centuries we led the world in individual liberty and genuine human rights. We can do so again, but only if we break free.

[1] We partially opted out of Schengen; Blair and friends signed us up for Police Security and Judicial Cooperation in 1999.