Is This The End Of British Democracy?

In the wake of the recent rulings of the European Court of Human Rights on prisoners' voting rights and mandatory life sentences without review, the Prime Minister's spokesperson has revealed that David Cameron (and numerous other members of our Government) are "very, very, very, very disappointed" with the ECHR's most recent forays into the UK's political forum.

This statement has emerged amidst a general rising discontent in the UK with European intervention into domestic affairs, and an emerging anti-Europe trend that threatens a possible departure from the rest of the continent's political structure in the form of a future referendum on the UK's European Union membership.

When the Human Rights Act of 1998 was enacted to give effect to the European Convention of Human Rights, Article 46 of that Convention was specifically and deliberately not incorporated into domestic law. Article 46 obliges states to comply with the judgments of the ECtHR. This article's non-incorporation was designed to protect our British Democracy.

Nonetheless, as a result of the ruling in Hirst v. UK (No. 2) in 2005, the failure to implement prisoners' voting rights will cost this nation's coffers £160m. The rights bestowed by Article 3 Protocol 1 of the ECHR that the ECtHR in Hirst sought to defend, that of the free expression of the opinion of the people in the choice of their legislature (through free elections by secret ballot at regular intervals), was stated by that court to be crucial to "establishing and maintaining the foundations of an effective and meaningful democracy".

It follows that the ECtHR deems itself the final arbiter of the concept of democracy. However, when we declined to incorporate Article 46 in the 1998 Act we rejected this claim. When the UK chooses not to facilitate prisoners' voting rights it chooses to vindicate democracy as we see it, as it has developed in our nation over the last 8 centuries; it chooses to vindicate the principles of our British Democracy, which make very clear that criminals who lose their liberty by being incarcerated so too lose their power to vote. The power to vote may be considered a right in Europe, but here it is most certainly a privilege.

Turkey has been allowed to ban the wearing of Islamic headscarves in educational institutions in a largely Islamic nation. Switzerland has been allowed to ban the construction of further Mosque minarets. Both of these bans fundamentally restrict the freedom of expression and religion of their free citizens, yet have been validated by the ECtHR on the basis that these decisions fall within the margin of appreciation afforded to protect the individual identity of contracting states as nations.

The ECtHR's choice to force the UK to afford prisoners voting rights is an anathema to some of our most important societal norms and ideals: it violates the integrity, and villainises the very identity of British Democracy. This flies in the face of the originally envisaged supervisory role of the ECtHR, and the breadth of the discretion usually afforded to contracting states under the margin of appreciation.

The ECtHR in Hirst did not ignore the margin of appreciation altogether. The court made clear that the Article 3 Protocol 1 rights were not absolute, and it paid lip-service to the fact that "[t]here are numerous ways of organising and running electoral systems and a wealth of differences. in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision."

However, greater emphasis was placed on the requirement that any limitations on rights be in pursuit of a legitimate aim and be proportionate, and the court condemned the notion of "automatic disenfranchisement [of prisoners] based purely on what might offend public opinion". This ruling was upheld in Scoppola v. Italy (No. 3) this year, where the ECtHR clarified that the contracting states' margin of appreciation in the area of prisoners' voting rights applies to how the area is regulated, rather than if the rights are to be conferred.

The key 'problem' identified by the ECtHR was that "[a]ny departure from the principle of universal suffrage risk[s] undermining the democratic validity of the legislature elected and its laws". Who are the ECtHR to judge whether our British Democracy is valid? Our refusal to allow prisoners to vote reflects our core democratic ideals, and as the ECtHR admitted in Hirst: modern states mould themselves into their own concept of democracy, which is a product of, inter alia, their unique political climate. When the ECtHR made the rulings in Hirst and Scoppola it arrogated mastery of the concept of democracy; it arbitrarily defined democracy's limits and found the UK wanting.

But why should we be forced to comply with a vacuous characterisation of democracy fabricated by an incorporated body that lacks the benefit of its own national history, culture and politics to properly inform and frame its development?

Democracy in the UK was hard fought for. Ours is not artificial, but organic. Ours is not a concept, but a reality. Ours finds the ECtHR's vision of democracy wanting for lack of any true significance. Our democracy is inextricably intertwined with our national identity, and our consistent refusal to give any prisoners the right to vote is testament to the importance to the people of the UK of the democratic principle that prisoners have the privilege to take part in choosing our legislature stripped from them as part of the punishment for their crimes.

However, as a result of the threat of £160m in sanctions the Voting Eligibility (Prisoners) Bill has been drafted. In its present form it offers three reform options on which to vote: (1) that the ban will be retained for all prisoners jailed for over 4 years; (2) that the ban will be retained for all prisoners jailed for over 6 months, and; (3) that the current ban will be retained with only minor amendments, the effect of which being that all prisoners serving a custodial sentence will still be banned from voting.