Anyone that has heard Hirst give interviews will no doubt be repulsed by his sense of entitlement. He is a man who has committed one of the most unconscionable crimes in society but nevertheless feels free to demand rights and privileges on the same basis as law-abiding citizens. Particular revulsion can be attributed to Hirst's description of the judgment of the European Court of Human Rights (ECtHR), ruling the UK's blanket ban on prisoners voting to be unlawful, as 'his' judgment. For all his cocky remarks, however, Hirst has made one solid point. Public opinion is absolutely irrelevant in upholding human rights.
If you talk to members of the judiciary, most will frankly admit that public opinion is a consideration when decisions are made. This is particularly so in sentencing in criminal justice, where many judges are afraid of being seen as 'soft on crime' by passing a lenient sentence. The extent to which public opinion should be a legitimate factor in ordinary judicial decision making is debatable. What is clear, however, is that the views of the majority should have no impact in the interpretation and application of human rights.
This is so because human rights are about the protection of the individual against the state. The very reason the European Convention on Human Rights (ECHR) was founded in 1950 was to ensure that individuals had binding protection against the tyranny of the majority, which had been so clearly dominant in Nazi Germany and the Soviet Union. Majoritarian views cannot and should not alter fundamental human rights. Accepting that principle sometimes involves taking unpopular decisions like letting suspected terrorists walk free on the streets, or allowing people like Hirst to visit the ballot box alongside decent citizens.
It is very difficult for domestic judges to remain insulated from public opinion. Lord Phillips, President of the Supreme Court, recently claimed that judges were totally detached from the political arena and made decisions entirely according to the law. This is clearly false, as a cursory glance of the law reports in the area of human rights will reveal to you. Judges of different political persuasions can differ markedly on issues of liberty and security. Whenever a significant ruling is made by the Supreme Court it is almost inevitable that the members of the court will have considered the front-page implications the next day. They are first and foremost British lawyers, who have grown up in British society with British morals and values.
Human rights, by their very nature, are universal. A person's right to a fair trial should be the same whether he is in England or Saudi Arabia. As a result, there cannot be any scope for the tailoring of human rights to particular national concerns. It is true that states, under the ECHR, have a 'margin of appreciation', within which they can make their own judgments on aspects of human rights law. However, this margin is clearly circumscribed so as to prevent individual states denying people fundamental liberties, such as the right to vote in elections.
As such, it is essential that there is some checking mechanism to ensure that individual countries respect the key principles of the ECHR. A right-leaning think tank recently called for the UK to remove itself from the jurisdiction of the ECtHR, claiming that it was unable to understand the particular morals and norms of the UK in certain areas. However, the peculiar characteristics of nation states should be an irrelevant factor in applying human rights law. In order to guarantee compliance with the Convention it is necessary, therefore, to have an independent tribunal in place to consider a case without all the pressure and scrutiny involved in domestic proceedings.
Judges in Strasbourg are far less likely to take into account the views of the British public when making rulings about the provisions of the ECHR. Jack Straw, writing in The Times, has used this is an argument for refusing to abide by the ECtHR's judgment on votes for prisoners. By contrast, this is exactly why we should submit to its jurisdiction and accept its rulings with good grace. Domestic judges, for all their independence and intelligence, are inevitably more liable to be swayed by majoritarian tendencies than those from different countries, backgrounds and cultures. This is an invaluable safeguard in human rights cases, where the only bulwark between tyranny and freedom may be a person in a gown sitting in a court.
Its a pity these judges in Strasbourg are not concerned with the rights of John Hirst's landlady who no longer has the right to breathe let alone vote. The simple fact is that most prisoners do not want to vote they simply want to use this ruling to obtain compensation by taking our government to court probably using legal aid to pay for it.
ReplyDeleteI feel I need to put an end to this 'what about the victim?' argument.
ReplyDeleteFirstly, the ECHR does not have horizontal effect. This means it is only enforceable by individuals against the state. It is not, therefore, enforceable by individuals against other individuals. So it is incorrect to speak of one person violating another's human rights under the ECHR.
Secondly, the fact that John Hirst killed his landlady does not stop him being a human. It stops him being a decent, respectable, bearable human being, perhaps, but not a human. However hard this is to accept, he should still be entitled to human rights.
A person is always entitled to human rights whatever they have done. Why? Because they are still human. A pretty simple (although admittedly regrettable in some cases) argument.
As to your point about compensation, if that is true doesn't that show how silly it is to be dragging our heels over this issue? Why not just give them the right to vote and not have to pay a dime? Your taxes could perhaps be better spent on other things than giving convicted criminals damages, don't you think?
I agree with your point regarding the need for a context free appraisal of human rights. You may not aree with the ECHR's ruling in this instance, but you will defend to the death their right to make it.
ReplyDeleteHowever, while this is outside the frame of your argument, I would posit that the right to vote is not a human right, but a matter of privilege. A slippery slope I know, as the followup question would inevitably be "Where do we draw the line between humans who can't vote and humans who can."
I picked my words carefully there, because non-citizens cannot vote, despite (presumably) being human. So clearly, Europe does not strictly believe that the right to vote is an absolute human right.