Convicted UK prisoners will get the right to vote after the European Court of Human Rights (ECHR) ruled that the present ban is unlawful.

The current prohibition against prisoners voting dates back to the 1870 Forfeiture Act. Subsequently, the ban was retained in the Representation of the People Act of 1983. Currently, the 85,000 convicted prisoners in UK jails are denied the vote.

In 2004, the Strasbourg-based ECHR ruled the ban was unlawful following a challenge from prisoner John Hirst, who was jailed for manslaughter for hacking his landlady to death with an axe in 1979. After exhausting all legal avenues to fight the ECHR's ruling, the government has concluded that there is no way of upholding the ban.

Unsurprisingly, reaction to the news has been mixed. The think tank Civitas said that making MPs more responsive to criminals was not what a law abiding society needed. Director David Green commented 'It is another example of judges acting as if they were politicians. It is judicial empire building.' On the other side of the debate, Frances Crook, Director of the Howard League for Penal Reform, said that giving prisoners the vote was a good way of engaging individuals with the responsibilities of citizenship ahead of a safe return to the community.

Those around Mr Cameron say he is 'absolutely horrified' by the idea of changing the law but reluctantly accepts there is no alternative. It is believed that the government (i.e. taxpayers) would be required to pay a compensation bill of around £50 million if the law is left unchanged. In the words of Mark Harper MP, minister for political and constitutional reform in the Cabinet Office, 'The only thing worse than giving prisoners the vote would be not giving them the vote and having to pay them damages.'

What are we to make of the decision? Let me offer three reflections before answering.

The first concerns the acceptability of the ECHR directing UK policy. Is that legitimate? Or, is it opposed to the principle of subsidiarity, the belief that matters ought to be handled by the smallest, lowest or least centralised competent authority? Similarly, what happens when the judgement of the ECHR conflicts with the judgement of a national government or the will of its people? Or when human rights conflict with democracy?

Secondly, it's notable that it's not only convicted prisoners who are denied the vote but also members of the House of Lords, including the 26 Church of England Bishops. Where is the clamour for them to be given the vote? If voting is a fundamental human right, all human beings, including members of the House of Lords and the Queen, should be granted that right.

Thirdly, it's worth noting that the European Court of Human Rights is not an institution of the European Union but a creation of the Council of Europe. The ECHR rules on disputes arising from the European Convention on Human Rights which was incorporated into UK law in the Human Rights Act 1998. So, arguably, the ability of the EHRC to rule on UK matters is democratically legitimised – though indirectly – through an act of Parliament by the UK's elected representatives.

The above considerations aside, should convicted prisoners get the vote on a point of principle?

The Forfeiture Act of 1870 was based on the 14th-century notion of 'civic death'. This is a profoundly significant concept and is evident in the Old Testament, where the judgement on serious crimes was that the perpetrators should be excluded – either permanently or temporarily - from the community. An offender's freedom of movement could be restricted through being exiled to 'cities of refuge'. Strikingly, there are very few references to prisons in the Old Testament.

One of the principal roles of governing authorities is to judge and restrain wrong doing. It's crucial that prisons – if they are to exist at all - are environments where those convicted of a crime are able to step off the ‘conveyor belt’, for example through education and training, and be equipped to embrace active citizenship upon their release. Whilst in prison, however, offenders are excluded from the wider community as a judgement for the crimes they have committed.

The vote represents an opportunity to participate in the decision-making processes of democratic societies. It is not a 'fundamental right', but a privilege, part of a social contract. It is therefore reasonable that those who have transgressed the laws of a community and broken that contract should be required to surrender their vote and the other benefits afforded to members of their community for the duration of their punishment. 

Paul Woolley is Director of Theos.