Who should decide what rights we should have? And what should those rights be? Those are the two stark questions that divided opinion this week when the House of Commons clashed with the European Court of Human Rights over the answers. The British government has been left with a delicate problem to solve and the way it does could have far-reaching implications for our relationship with Europe.

The specific issue of contention is whether prisoners in Britain should have the right to vote. Since Parliament passed the Forfeiture Act in 1870, prisoners, except those on remand or those imprisoned for default or contempt, have been denied the right to vote. But in 2005, the European Court of Human Rights in Strasbourg ruled that this breached human rights and ordered the British government to bring in legislation to rectify the situation. It has until this August to do so.

David Cameron has said that the very idea of giving prisoners the right to vote makes him feel physically sick, but he acknowledges that the British Government, like everyone else, is subject to the rule of law and must abide by the court’s judgement. He knows too that if the Government ignores the court’s rulings, it could open itself indefinitely to compensation claims from prisoners that could cost the taxpayer tens of millions of pounds.

It is up to the Government to decide the details of new legislation, and the Prime Minister’s initial suggestion was that the right to vote should be restored, but only to prisoners serving four years or fewer.

But many MPs, especially in Mr Cameron’s own Tory Party, have felt affronted by the whole thing. They feel not only that it is simply wrong for prisoners to be allowed to vote but, even more, that it should be for the British Parliament rather than a European court to decide. A cross-party backbench motion tabled by the former Tory Shadow Home Secretary, David Davis, and the former Labour Home Secretary, Jack Straw, proposed that Parliament should decide the issue and that the status quo should be maintained. On Thursday, the House of Commons voted on the motion. Both frontbenches abstained and it was passed by 234 to 22.

The vote was not binding on the Government, but the latter now has the delicate job of finding a way to satisfy both Westminster and Strasbourg.

The issue of prisoners’ votes itself is fairly simple. David Davis put the case against the right to vote. He said: 'The general point is very clear in this country – that is that it takes a pretty serious crime to get yourself sent to prison. And as a result you have broken the contract with society to such a serious extent that you have lost all of those rights – your liberty and your right to vote.'

The more liberal view is that loss of freedom is sufficient punishment. Juliet Lyon of the Prison Reform Trust has said 'the nineteenth century punishment of civic death' is excessive. Other reformers see the right to vote as part of the process of rehabilitation, of preventing prisoners from feeling wholly alienated from the society to which they will return. And others say the whole thing is academic: most prisoners wouldn’t be bothered to vote anyway.

The constitutional issue of who should decide this issue is altogether more thorny. The obvious answer is Parliament. But it was a British government, with the authority of Parliament which signed up to the European Convention of Human Rights. The convention, the brainchild of Winston Churchill, was intended to defend human rights that had been so abused in the period up to and during the Second World War.The court in Strasbourg was established to protect those rights.

The Convention is quite separate from the European Union and has its own debating forum in the Council of Europe. British people have been able to take cases of alleged human rights breaches to Strasbourg since long before Britain joined the EU, and the last Labour Government made it possible, through the Human Rights Act, for cases under the convention to be heard in British courts. Being a signatory to the convention, though, is regarded as a sort of certificate of democratic bona fides necessary to belong to the EU.

Critics of the Strasbourg court accuse of it being expansionist and of passing judgements far beyond the narrower notions of what constituted human rights back in the 1940s. In doing so, it’s argued, the court has encroached on the ability of democratically elected parliaments to decide issues for themselves. In the Commons on Thursday, Jack Straw accused it of ‘judicial activism’, a charge that has also been levelled against Strasbourg by the former law lord, Lord Hoffman.

Defenders of the court say that, at least in the case of prisoners’ voting rights, it was only because the British parliament had not been doing its own job properly that the court found itself having to act. Parliament hadn’t bothered to debate the issue since 1870 so, when prisoners complained, it was only right that someone took a look at the issue again.

But those alarmed by what they regard as Strasbourg’s sprawling jurisdiction see in the prisoners’ votes case a chance to fight back. Blair Gibbs, of the think tank, Policy Exchange, said: 'Now is the opportunity to go to the root of this problem which is the expansionist Strasbourg court. The UK Government should use prisoner votes to reassert its authority over Strasbourg and, if necessary, prepare to leave the court’s jurisdiction if it cannot be reformed'.

To others, however, it is only a court such as the ECHR rather than a parliament which offers people any real hope of having their rights defended. The Labour MP, Denis MacShane, said: 'I believe that peoples of other regions of the world – Africa, Asia, South America – would die to have an ECHR to tell their government what to do'.

The British Government shows no wish at all to listen to those who would like to see Britain pull out of Strasbourg altogether. It would complicate its relationships within the European Union far too much if it did so. So it needs to find a policy on votes for prisoners that will satisfy the court and its own backbenchers. Thursday’s vote will strengthen its hand with the court but it may also embolden those who will have no truck with giving prisoners the vote and will simply not put up with a court, and a European court at that, telling the British Parliament what to do.

What’s your view?

  • Should prisoners be given the right to vote or not?
  • Do you think it is legitimate or not to regard voting as a human right, irrespective of whether or not the voter is a convicted criminal?
  • Do you think it is the sort of issue that the European Court of Human Rights should be considering or not?
  • Should the British government be prepared to defy the ECHR even if it means paying out millions of pounds in compensation to prisoners?
  • Should the British government pull out of the European Convention on Human Rights altogether?
  • If not, how do you think the British government should square the circle and satisfy both Strasbourg and Westminster?
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