Comment: Parliament should not surrender to Strasbourg

Today, MPs are debating a motion that has divided members on both sides of the House. Although the motion ostensibly relates to ‘voting by prisoners’, the ramifications of the debate stem far beyond extending the franchise to the convicted prison population.

By Carolina Bracken

The furore sparked by the now infamous Hirst judgement strikes at the very “bedrock” of our constitution. The principle of parliamentary sovereignty has survived the passage of the European Communities Act 1972, the Human Rights Act 1998 and the devolution Acts of the same year – albeit with some degree of modification – yet it is now under threat as never before.

Drafted in the shadow of the atrocities committed during the Second World War, the European Convention is a commendable abstract statement of the need to protect and guarantee human rights. Some 60 years after its ratification, the broadly drafted principles continue to resonate with our modern-day political and legal priorities. Yet the scope and meaning of the Convention has been repeatedly inflated by its supranational guardian, the European court of human rights’ (ECtHR). Now the court has gone further still, seeking to curtail the ‘margin of appreciation’ afforded to ECHR signatory states to the point of non-existence.

Operating at a higher level of abstraction, human rights are truly universal. However, there is considerable scope on a national level as to how the protection of fundamental rights may be achieved. The ECtHR rightly states that this margin of appreciation is not “all-embracing”; as the dissenting judges note, there is a world of difference between the disenfranchisement of an ethnic minority, which does infringe Convention rights, and the categorical disenfranchisement of convicted prisoners. Nonetheless, the court seeks to subject the scope of the margin of appreciation to excessive “European control”. The ECtHR fails to respect the decision of the UK Parliament not because it breaches human rights, but because the conclusion grates against its own political ideal.

In contemporary society, many if not most issues of significant debate pertain to questions of fundamental rights. Ceding to Strasbourg such substantial swathes of political power would be to allow a distant body of unaccountable and increasingly reckless judges to usurp the authority of our parliament, and hence of our electorate.

Parliamentary sovereignty is not a grand, abstract principle, irrelevant to all outside tightly-knit academic and political cliques. It is of relevance to everyone in the UK who wants a say in how their country is run; to everyone who wants to be able to hold to account the bodies that decide the rules by which we must live our lives; to everyone who wants their vote to count. We are currently suspended in an illogical constitutional anomaly, whereby our courts can refuse to follow Strasbourg judgements, but our supposedly sovereign parliament cannot.

We must be clear: by supporting Thursday’s motion, we are not seeking to excuse ourselves from any of the standards we adopted when we drafted and ratified the original ECHR text. It is not an attempt to enable MPs to pick and choose those rights they are happy to protect and those more inconvenient rights they would rather dismiss.

There is a crucial distinction between the commitment of the ECHR signatories to uphold universal rights principles, and the laudable reluctance of the sovereign UK parliament to surrender to an unelected judicial powerhouse the constitutional principles that have shaped our country for centuries.

It cannot be stated strongly enough that we should not disagree with the court of human rights simply because we do not like the outcome of this or any other judgement. However, when the UK ratified the Convention over 60 years ago, we did not and could not predict the indefensibly expansionist agenda the ECtHR would ultimately pursue.

The debate is no longer whether or not prisoners should have the right to vote. The debate is now what having the right to vote will mean for us in the future. The question we should be asking ourselves is not whether the franchise should be extended, but whether we want our elected representatives to be able to make that decision on our behalf.

Carolina Bracken is a research fellow at Civitas

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