Friday, February 18, 2011

Prisoners' right to vote (2)

David Kessler commented on my post about prisoners' right to vote.

He noted that I offered no evidence that removing the vote lacks penal value. The point about human rights is that the presumption must be that everyone gets them, not just people of whom we approve. If anyone wishes to remove someone's human rights they have to rebut that presumption; THEY have to produce the evidence. I heard none in the Commons debate.

The logic of his and Tory and Labour MPs' and the Sun's and the Mail's and the Telegraph's argument about democracy is that there can be no binding international conventions. The logic of mine is that if you sign them you should abide by them or leave them.

He made an interesting argument about compensation. Passing over his revealing expression "criminal-friendly judiciary", I despise the government's fear of compensation payments. We should obey the court's judgements because we are a law-abiding country and have freely signed up to this legal system. Many MPs made the argument, "If you break the law, you shouldn't make the law". Voters don't make the law, they elect law-makers. MPs DO make the law and these same fools voted last week to break the law so by their own logic I expect them all to resign.

1 comment:

David Kessler Author said...

An interesting rebuttal, and I apologize in advance for this long reply. Re your argument that:

"The point about human rights is that the presumption must be that everyone gets them, not just people of whom we approve."

I agree entirely. My position on prisoners voting is that there IS indeed a human right to vote, but that like any other right (such as the right not to be imprisoned) it can be waived by the holder. The question is whether crime (or at least some crime) constitutes a waiver.

You also write that "If anyone wishes to remove someone's human rights they have to rebut that presumption." Again, I agree, but to confine your attention to the content of the recent debate is to ignore the fact that the rule against prisoners voting is an old one that long predates the court ruling and the recent debate.

Regarding treaties, I again agree that one should either abide by a treaty or leave it. But the issue becomes more complicated when the implementation of the treaty requires further legislation above and beyond enacting the treaty itself. The reason for this is that individual MPs cannot be told how to VOTE in a parliamentary vote by a treaty. As you yourself noted, the treaty was signed by the GOVERNMENT and not actually ratified by parliament, but simply enacted into law (in all its vagueness and ambiguity).

One cannot use the result of one parliamentary vote to dictate to MPs how they may vote in another vote. If the effect of the latter vote is to negate part of the result of the former vote then its effect is to MODIFY the law (if it is a legislative vote as opposed to merely a resolution). That could hardly be described as voting to break the law. Rather it is voting to CHANGE the law. (I am not sure if parliamentary rules would even allow a private members bill to repeal a treaty.)

If the vote does not change the law but merely expresses the sentiment of parliament, then it is protected by the same right to freedom of speech as that enjoyed by anyone else in the EU.

You noted that my argument about compensation was "interesting" but your response was a non-sequitur. You may despise the government's "fear of compensation," but to whom should compensation be paid, given the court's reasoning? Moreover, the court left open the possibility that SOME prisoners could legitimately be disenfranchised, so the court would then have to decide which prisoners would be allowed to vote under hypothetical compliant legislation.

Finally, bear in mind that any compensation would come out of taxpayer's pockets. Does it not follow from the perspective of justice that taxpayers should be allowed to join the proceedings (or submit amicus curiae briefs) so that their rights can be protected? You might say that the government represents the taxpayer's interests; but if the elections are unfair (as the court has ruled) then the government plainly DOESN'T represent the taxpayers or the electorate.

My conclusion is not necessarily that you are wrong as to prisoners voting, but that the issue is far more complicated than your presentation implied.