Thursday, 17 February 2011

EU're Right and We're Wrong

I'm no lover of the European Union, but I will say this when I see it.

The UK Parliament has voted overwhelmingly against compliance with a European Court of Justice European Court of Human Rights ruling, demanding we cease to disenfranchise all imprisoned convicts. This has been hailed in the more nationalist sections of the Press as a famous victory for Parliamentary sovereignty, which I suppose it kind of is. But what a dud cause to waste a costly victory on!

There is a democratic argument for this. Parliament is, for once, actually in tune with the people, and there is no popular appetite for extending the franchise to a bunch of villains. The villainous constituency in our democracy is generally considered to be quite amply represented already*. Given the will of a clear majority of the public, who are local grandees or foreign lawyers to overrule it?

But this is the one issue on which there is really no excuse for a democracy to care about the will of the majority at all! If the right to vote itself is up for majority decision, that is not democracy: it is a membership vote amongst an arbitrarily self-selecting club. For instance, the Good and Democratic Conservative/LibDem Coalition represents, by the conventional democratic fiction, a 59% majority of the British population, whereas the Evil Outgoing ZanuLiebour Regime won only 29% of the vote. If the Good Coalition were to decide democratically, speaking for Society, that proven Evil voters had forfeited their franchise by their dastardly collaboration with subversive would-be dictators, I think we might all be asking some very hard questions of them round about now.

That it would be politically bad and also unjust goes (for me) without saying; but that it would be also undemocratic, and that even with the full consent of 71% 'Society' has no logical business to disrepresent the naughty 29% whilst still claiming to be anything but a power-bloc, is I think quite as important. Nor could the 99% of 'moderate' party voters get to do the same to the voters of 'extremist subversive' ones. Democracy that is a withdrawable club privilege is no democracy at all: or if democracy at all, it is a Saturnist democracy, whose civic fathers reserve the right to gobble up any inconvenient births in their cradles.

So we dispense with the easy argument: that the majority of people-who-count, even if it is also the majority of people-at-large, has the arbitrary democratic right to define who gets to count towards the democratic majority at all.

The second, and seemingly much harder, argument, is that the majority still has the right to define impartial qualifications for the franchise - such as that anybody who claims their right to decide the laws, must also agree to be bound by them. This derives from the very popular notion of the Social Contract, about which I admit to the gravest reservations. But one needn't be an anti-social nutcase like me to appreciate the hidden harm in this stricture on democracy.

The simple problem is this. If people can be made political non-persons for breaking a rule, that provides a very strong incentive for politicians to pass frivolous laws targeting groups unlikely to vote for them, or to enforce general laws capriciously against the same targets.

Is it really a co-incidence that the USA, where control of the franchise has so long been such a core issue of partisan contention, has now achieved a mass imprisonment rate exceeding that of your bog-standard Communist dictatorship? Or that so many of the heinous crimes justifying such disenfranchisement, turn out to be victimless crimes against nobody but the State's offended Lifestyle Censor?

I suggest that, in countries where imprisonment leads to disenfranchisement, there will be a built-in demand amongst the authorities to create crimes which exist for the sole purpose of securing convictions - and an increased reluctance to enforce any laws against their own client groups. When both the manufacture of arbitary crimes and the vitiation of useful laws are made more politically profitable, then by so much will the whole rule of law be systematically and needlessly corrupted.

If we were to move towards the American States' nakedly vicious practices of massive sentences for trivial infractions and post-imprisonment disenfranchisement of felons, can we doubt that they would bring American levels of malicious legalism and selective enforcement in their train?

And if that's the case, what's wrong with removing an existing incentive to oppression and corruption? Isn't it more likely to weaken a powerful and concentrated interest for evil, at the trivial expense of enhancing a weak and dispersed one?

- No, in the end it will not make very much difference for whom Jack Clubs in Wormwood Scrubs votes, or whether he's allowed to, or whether once allowed he can be bothered. But it might just make some useful difference to how his brother Jack Suit votes in Westminster!

Correction 20/02/11: Just pointed out to me in comments that it was the Council of Europe's European Court of Human Rights, not the EU's European Court of Justice, that made the ruling. We can quite confidently expect the ECJ to follow the ECHR if the case ends up there too, but this has not happened yet - which means that I, and my crap pun, have jumped the gun entirely.

We apologize for the earlier shortage of reading comprehension upon our part, which was due to circumstances within our control. Mea culpa.

*Not all of the people in any of these categories are, by any means, villainous. And nor are all prisoners.


  1. Agreed, though I think it's worth pointing out that ECHR - which made the ruling - is not an EU institution. The European Court of Justice is, but they did not make this ruling.

  2. Aargh, thanks! That was very sloppy of me, and I have no idea how I failed to notice. Corrected.


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