Having been following this issue in the news and having read some interesting comments about it on Twitter recently, I thought that I would have a think in more detail about what my position is on the issue of the right of prisoners to vote.
First, the constitutional side. On Twitter, @benjaminfgray suggested that there may be an ironic tension between, on the one hand, MPs saying that lawbreakers should not have the right to vote and, on the other hand, themselves voting “to break the law” (i.e. by having the UK defy a ruling of the European Court of Human Rights). @DavidAllenGreen expressed disappointment that “so many seem to fall” for the doctrine of sovereignty of parliament, which he variously described as a “Victorian myth”, “a common law doctrine of statutory construction” and “crap”. @benjaminfgray described parliamentary sovereignty as “a judicial doctrine” and suggested that it was “a bit silly to try and play it as a trump card over a court”.
The implication appeared to be that MPs were constitutionally obliged to vote to change English law in order to comply with the ruling of the European Court of Human Rights. I disagree. My understanding of parliamentary sovereignty is that it means simply that the ultimate law-making authority in this country is the body comprising the elected representatives of the people of this country. Governments propose law and courts interpret and apply law but parliament has primacy. There is no higher law in this country than the law made by parliament. Accordingly, parliament can vote to ignore international law (whatever that amounts to), European law and the European Convention on Human Rights, although doing so will have consequences. I believe that – while we remain any kind of sovereign state – this is entirely right and proper. While various international obligations may have been entered into and power may in various areas have been ceded to other authorities (most obviously Europe and NATO) our destiny remains in our own hands and MPs can always vote to take power back (even though in some cases it may now seem more or less unthinkable that they would ever actually do so).
Accordingly, it is obvious from the above that – unlike some – I would accord considerable significance to the doctrine of parliamentary sovereignty. In my view, there is no tension between MPs considering that lawbreakers should not have the right to vote and themselves deciding to vote for a motion expressing support for English law that does not comply with a decision European Court of Human Rights. Nor is it silly to invoke the doctrine of parliamentary sovereignty “against a court”. Its ability to be so invoked is fundamental to what I understand it to mean.
An underlying question here is the extent to which a democratically elected body is capable of making laws restricting participation in democracy. I would suggest that in this country, it obviously is. Historically, the franchise here has of course been more limited than it is now. Unless and until we were to have a genuine constitution of fundamental rights prohibiting restrictions on universal suffrage and a Supreme Court that is constitutionally above parliament to implement it, parliament can decide to allow limitations on the right to vote to continue to exist. I do not believe that we are there yet. The European Convention does not amount to such a constitution nor the European Court of Human Rights to such a court.
So, in my view, parliamentary sovereignty was key to the constitutional basis for MPs voting as they did this week (effectively expressing an intention in support of maintaining the status quo in relation to prisoner votes notwithstanding the decision of the European Court), in the sense that it means that they are not obliged blindly to implement decisions of the European Court. Whether they would be right not to do so is another question. The European Convention on Human Rights and our European obligations are important and should not be breached lightly. The argument appears to be that where someone has chosen to defy the laws made by parliament in a sufficiently serious way to be sent to prison for it, he or she should be deprived from participation in the democratic process that ultimately leads to the making of laws for the duration of his or her sentence. People will have different views as to whether that principle is even correct and upon how far the UK ought to go in order to defend that principle in defiance of the European Court of Human Rights, depending upon how fundamental they consider that principle to be. Parliament as currently constituted seems to think that it is both right and important. I suspect that a significant majority of the general public would agree with them.
Constitutional issues aside, I also had a couple of thoughts on the specifics. First, in relation to the question that has been debated as to whether a threshold based upon sentence length could be imposed as a solution to satisfy the European Court short of allowing all prisoners to vote. I fail to see how that would be any less objectionable in principle than a blanket loss of the right to vote (which effectively is just a threshold set at 1 day). If the principle is that prisoners should not be deprived while in prison of voting to influence the composition of a parliament if that parliament will still be in place once they have been released (and I am not even sure that this is generally accepted as the principle, although it might seem to make sense), a case-by-case test would have to be imposed based upon both length of sentence and the point in the electoral cycle. This would of course be difficult to administer and would be easily confounded by various factors, for example early release and the unpredictability under our system of the timings of dissolutions of parliament.
Second, I fail to see why any special exception to an otherwise blanket loss of the right to vote should be made in relation to contempt of court, which is the current position in this country. Contempt – i.e. defiance of the legal system by refusing to comply with a court order – would seem to involve, more specifically than many crimes, a deliberate rejection of part of the fundamental mechanism of civil society. So on the contrary, if it could be said that there are special cases, over and above any breach of the law in general that is serious enough to warrant a custodial sentence, where suspension of the right to participate in civil society via the vote is particularly appropriate, I would have thought that contempt of court is probably one of them.