This blog does not intend to rehearse the merits of the prisoners’ voting rights saga. In principle it is hard to muster reasons providing a basis for banning prisoners from voting: other rights related to the democratic process, such as association and free expression, may necessarily be somewhat circumscribed by the fact of imprisonment (although probably less so in the internet age than previously), but that is not the case in relation to voting, and so the near-absolute ban, based as it is on the idea of ‘civic death’, has little to commend it. However, the merits of the case have been put forcefully by other writers (such as Colin Murray), by Liberty and by the Prison Reform Trust. The purpose of this blog is to note that while this issue has assumed ‘totemic importance’ in relation to national sovereignty (as the Justice Secretary Chris Grayling put it) it would be utterly misjudged to allow it to derail the whole ECHR project as far as a range of states are concerned (see eg Dominic Grieve on this point: Col 511-512). However, such derailment may be precisely what a range of actors may be hoping for, regardless of their views on the disenfranchisement of prisoners, while others may consider that diminution of the influence of the ECHR in some other states is a price Parliamentarians and some voters would be willing to pay to prevent Strasbourg’s interference in democratic determinations as to the democratic process in Britain. Contrary to those views, this blog will argue that the prisoners’ voting rights saga graphically illustrates the need for sensitive and subtle use of the concept of subsidiarity and reliance on a dialogic approach, in an increasingly nationalistic Europe. I argue that there are two ways forward which could put an end to this saga without creating an appearance of outright defiance of the ECHR, and that dialogue and subsidiarity might still have a part to play in so doing.

Subsidiarity and dialogue

The notion that Strasbourg should pay greater attention to the concept of subsidiarity and should promote dialogue with national authorities, especially the higher national courts, has recently gained greater currency. As I have noted elsewhere on this blog, a number of aspects of the Izmir, Interlaken and Brighton declarations (see here) were aimed at creating greater subsidiarity within the judicial process. At the same time, a number of judges have expressed their preference for viewing the interaction between Strasbourg and the UK courts as a dialogue within which both parties seek to find an acceptable balance between the rights of the applicants and countervailing considerations (for example, Lord Neuberger, Baroness Hale, and Sir Nicholas Bratza).

The Interlaken Declaration stated: ‘The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to … take fully into account its subsidiary role in the interpretation and application of the Convention…[and] invites the Court to… avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case law according to which it is not a fourth instance court’ (Point 9). The Brighton declaration emphasised subsidiarity and use of dialogue: ‘The Conference therefore: a) welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; (b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the preamble to the Convention’ (Point 12), as has now occurred in Protocol 15. The declaration further ‘welcomes and encourages dialogue, particularly dialogues between the Court and the highest courts of the States Parties’ (Point 12(c)). Subsidiarity is linked to a dialogic approach in the sense that if the Strasbourg Court perceives itself as providing a level of protection of rights that is subsidiary to that provided domestically, then it needs to pay close attention to national views as to the form of protection that the right should receive nationally and to their context, especially where such views demonstrably take account of key Convention principles at stake in the particular instance, in particular that of proportionality.

In developing some ideas on this subject, I am taking the prisoners’ voting rights saga as a currently highly significant example, to ask whether it represents a failure of the dialogic approach, and whether a similar stand-off might be avoided in future if both dialogue and subsidiarity receive greater emphasis at Strasbourg and domestically. Such emphasis might have been anticipated in this context, given the exceptionally qualified nature of Protocol 1 Article 3, the broad exceptions to the right accepted by the Strasbourg Court, its relativistic approach to it, as discussed below, and the lack of consensus on this matter in the various member states. I intend to consider whether the formal mechanisms introduced in June 2013 under new Protocols 15 and 16 ECHR will play much role in enhancing subsidiarity or dialogic opportunities, or whether informal mechanisms already under development are more significant, although there may be no necessary opposition between the two: formal and informal mechanisms may inter-react. By ‘informal mechanisms’ is merely meant mechanisms that may exist under the banner of the tags of ‘margin of appreciation’ or ‘the concept of subsidiarity’ but which need further delineation and  definition, relying on the Strasbourg jurisprudence.

Further, if the Court adheres to the concept of subsidiarity which is also intended to be linked to a dialogic approach, then might it be said that the decision triggering the prisoners’ saga, Hirst, could have been better explained, and thereby failed to adhere fully to the principles embedded in the concepts of subsidiarity and of dialogue?  Might it also be argued, bearing such concepts in mind, that in the light of the findings in Scoppola as to limitations on enfranchisement of prisoners deemed compatible with Protocol 1 Article 3, that there is room for an eventual very restrained response to Hirst at Westminster (possibly more restrained than that under the second option under the current draft Bill on prisoners’ voting) which the Strasbourg Court might well find persuasive even if it represented minimal adherence to the principle laid down in Scoppola. 

Emphasis on subsidiarity and on dialogic changes under new Protocols 15 and 16 ECHR

Protocol 15 provides: ‘Article 1 At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.’

Protocol 16 makes provision for advisory opinions, to be sought from the Grand Chamber which will be non-binding on the state, and which must be sought in the context of a case before a domestic court or tribunal (to adhere to the in abstracto prohibition). The state in question must designate the court/tribunal able to seek such opinions (Article 10). Presumably in the UK it would be the Supreme Court. A question might arise as to the judicial response to such opinions; obviously they would be technically non-binding (s2(1)(a) HRA),  but the Supreme Court might view itself as being in a fairly difficult position if it decided to disregard such an opinion, in finding against the applicant in a Convention case. Would the Strasbourg Court then view the Supreme Court as having refused to listen to it, meaning that as the dialogue had broken down, the Court would be less likely to be influenced by the Supreme Court decision than if no advisory opinion had been sought?  If so, reluctance to seek advisory opinions might emerge, meaning that Protocol 16 could in fact encourage anti-dialogic tendencies in the UK. That issue could be of relevance in this current saga in future if the Supreme Court eventually had to adjudicate on claims from prisoners excluded from any new redrawn legislative scheme determining which categories of prisoners could vote.

Enhancing subsidiarity and dialogue?  

O’Meara in this blog argued recently that these changes under the two new Protocols will enhance dialogue. I suggest that their effects should not be over-stated, and that it is more important to examine the factors that may impel the Court to listen to the domestic authorities. What are they?  Below, examples are drawn from the prisoners’ voting rights saga where possible on the basis that some opportunities for dialogue arose, but dialogue was not established.

Democratic legitimacy given to ECHR balancing mechanisms

In Hirst v UK (No 2) the key problem, the Grand Chamber considered, was that Parliament in passing the Representation of the People Act 2000 had given no appearance – it found – of listening to Strasbourg:

“78. The breadth of the margin of appreciation has been emphasised by the Government who argued that, where the legislature and domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote.”

As the dissenting judges in Hirst pointed out, there is a contradiction between the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system, and its categorical finding that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (para 82).  The dissenting judges noted that in Py v France (cited in Hirst at [46]) the Court stated:

 “Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another”.

The dissenting judges in Hirst argued that the Grand Chamber was adopting an “evolutive” or “dynamic” interpretation of Protocol 1 para 3. If so, they found that according to its own case law it should have founded itself on “a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved” (see Hirst, Joint Dissenting Opinion of Judges Wildhaber etc para 6). Such a consensus was hard to discern (Hirst para 33).

The Grand Chamber did not fully explain why the UK’s scheme was deemed to fall so clearly outside the state’s margin of appreciation. Was it found so to fall due to the apparent failure of Westminster to engage sufficiently with Protocol 1 para 3 during Parliamentary debate, or on the basis that no possible Parliamentary articulation of the reasons for coming to the determination that was reached could have been viewed as satisfying the provision? If so, the lack of such articulation would be irrelevant, but the Court could have given greater consideration to the ways in which the UK could have met its obligations in relation to the demands of proportionality under para 3.

Judicial pronouncements in senior domestic courts

In Hirst v UK the Grand Chamber said: “It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for Parliament and not for the national courts. The court did not, therefore, undertake any assessment of the proportionality of the measure itself” (para 80).

In other words, no domestic court pronouncement on the issue of proportionality was available, to guide the Strasbourg Court. In other contexts, a number of examples can be found in which, where such guidance was available, and where the consideration of the right in question was fully embedded in the judgment, the Court allowed itself to be guided towards a position in harmony with that taken by the national Court, even where that meant departing from its own previous judgment.

For example, in Von Hannover No 2 the Court did not depart from the decision of the German Federal Constitutional Court  in finding that a photograph non-consensually taken, and making no contribution in itself to a matter of public interest, had not created a breach of Art 8 due to its publication, a finding of doubtful compliance with its findings on the same point in Von Hannover no 1. In A v UK the Court was clearly influenced as to the width of the margin of appreciation to be conceded to the UK by the findings of the House of Lords in A and others as to the proportionality aspect of Article 15. In Austin v UK, as I have pointed out elsewhere, the Court in effect followed the House of Lords’ decision in respect of balancing societal concerns against liberty under Article 5, disregarding its own findings on a similar point in A v UK.  In Al-Khawaja, as others have pointed out (for example Baroness Hale), the Grand Chamber was guided by the Supreme Court in Horncastle in reaching the decision on the scope of Article 6, which was contrary to its decision in the Chamber on the issue.

Failure of dialogue and the future of the Strasbourg Court?

Obviously dialogue is not dependent purely on the proper operation of the margin of appreciation doctrine as an aspect of subsidiarity. But operating that doctrine properly provides more space for dialogue. By ‘properly’ is meant – consistently, as the Interlaken declaration pointed out, and on the basis of clearly enunciated principles. Such principles include acceptance that if, under the Strasbourg jurisprudence, a state has an exceptionally wide margin of appreciation on a particular matter, it should not be found to have over-stepped that margin unless the European consensus on the issue has changed (for example, as occurred in Goodwin).

It is fairly obvious that the voting rights’ saga does represent a failure of dialogue. It may be said that the Court in Scoppola did try to effect some form of compromise between the UK position and the one it had taken in Hirst. However, that process cannot be viewed as dialogic since the two positions are fundamentally incompatible – there cannot be a dialogue that merely destroys the basic principle underlying voting rights, adopted by the Court. Two bodies at loggerheads cannot engage in dialogue. That failure can be broken down into a number of stages. First the Westminster Parliament, in passing the Representation of the People Act 2000, did not debate the question of balancing prisoners’ voting rights against countervailing considerations in a way that – in the Court’s later view – comported with the provisions of Protocol 1 para 3, even though the Act was accompanied by a statement of compatibility under s19 HRA. Had Parliament started from the standpoint that there is a human rights-based case for prisoners to vote, but that exceptions had to be made, and had given consideration to express adherence to the principle of proportionality in the legislation, it is still unlikely that Hirst would have gone the other way in terms of outcome since the Court would still have found that Parliament had made too little effort to give legal effect to the principle it had discussed. Given the outcome in the 2000 Act, it would have been impossible for the Westminster Parliament to demonstrate to the Court’s satisfaction that acceptance of the principles underlying Protocol 1 para 3 was genuinely embedded in the Parliamentary process, and so the choice made by the UK would still have fallen outside its margin of appreciation. However, the Court could have ‘listened’ to Westminster in the sense that its judgment might have created more leeway for the UK in terms of future options to make change more palatable to the British public – as it in effect then did in Scoppola. Second, as discussed, the Court did not facilitate future dialogue between itself and Westminster in Hirst in the sense of failing to discuss ways in which Parliament could maintain its substantive restrictions on prisoners’ voting rights while putting in place a procedure able to give sufficient legal recognition to those rights (as Italy was later found to have succeeded in doing).

Could Parliament and the Strasbourg Court now extract themselves from this stand-off by a more subtle and sophisticated operation of the ECHR mechanisms of dialogue and subsidiarity that are to hand? Two ways forward are apparent. If in debating the draft Voting Eligibility (Prisoners) Bill  Parliament speaks in the language of para 3 – in other words, acknowledges that prisoners have a right to participate in the free expression of the opinion of the people in the choice of the legislature which may be furthered by allowing some prisoners to vote, but could also be furthered in other ways (eg contacting MPs, writing to newspapers), it could then consider which exceptions to that principle should be maintained in order to further the aims the government has stated that the current prohibition is pursuing. If Parliament was prepared to vote for the second option under the draft Bill that would create an enlargement of the category of convicted prisoners who can vote that would arguably comport with the key finding from Scoppola since the restriction would not be general, automatic and indiscriminate (as recently reiterated in Soyler v Turkey and Gladkov v Russia).

Such a restriction could be viewed as falling within the UK’s margin of appreciation as delineated in Hirst, and as emphasised due to the change to the preamble effected by Protocol 15. It would arguably not be arbitrary – not for the reasons given by Lord Sumption in the recent Supreme Court decision in Chester that a prisoner might equally miss a spell of fine weather by being in prison (para 115), but because if the restriction can be viewed as rationally connected to the aims in question, then its impact on a particular prisoner who happens to miss a general election due to his/her release one day after it has occurred, is an inevitable result of operating any restriction (including those compatible with Protocol 1 para 3), and is also a result of not instituting a more far-reaching ban, affecting the prisoner after release. A prisoner under the Italian legislation upheld in Scoppola could be disenfranchised for life if serving more than 5 years; a prisoner serving 3 years could be banned for 5 years. (There are also US precedents for barring prisoners from voting after release – for example, Kentucky and Virginia). A wider range of prisoners would be disenfranchised than in Italy but that was not the key issue in Scoppola. That option would effect a fairly minor change, bearing in mind that some convicted prisoners can vote at present. It would obviously avoid the taking of the step whereby Parliament had deliberately voted to disregard a judgment of the Strasbourg Court, which would be unprecedented in the member states. That result would however be unpalatable to many, including the majority of the British public. (A recent Yougov poll indicated that the public generally do not accept that prisoners should vote). So the question, obviously, is whether Parliament would accept it.

Secondly, if the current draft Bill was modified, and the Parliamentary vote eventually takes place in, say, 2016, a modified version of the second option under the current Bill might gain public and Parliamentary acceptance – in a less forensic atmosphere. Would voters in the UK accept a new system whereby there was a much clearer link between seriousness of offence and disenfranchisement, so that certain prisoners serving longer sentences were disenfranchised even after release, while those serving very short sentences were not disenfranchised at all? For example, prisoner enfranchisement could apply to those serving any sentence of up to six months and could be dependent on the circumstances of the offence in question. Obviously that would mean that judicial consideration of enfranchisement would occur at the point of sentencing in relation to offenders in that category, meaning that the UK had in that respect exceeded the minimum demands of Scoppola (para 99). The key point for Strasbourg is obviously that there must be a real engagement of the state’s infrastructure with this issue (not necessarily at the judicial level), even if substantively there was little widening of prisoner enfranchisement as a result. Balanced discussion of the matter in the media, taking account of the value to society of rehabilitating persons in the latter group, would aid in public education on this matter and promote a more nuanced public response, but large sections of the media appear to view the whipping up of public hatred of the Strasbourg Court, using this issue as the focal point, as of greater concern.

At the present time, Parliament has been presented with an option in the draft Bill – maintaining the current prohibition – that is incompatible with the Convention as interpreted by the Court. Whatever Parliament eventually does, the fact that the government has brought the incompatible option forward at all is telling. At the same time Strasbourg has reactivated 2,281 prisoners’ voting rights cases against the UK awaiting judgment (see Firth and 2,353 others v UK in March 2013). The compensation they could be awarded (although clearly it would vary from individual to individual) is rising steadily since post-Hirst a number of them have already missed a number of elections and they could miss the 2015 General Election. It might appear that both sides are placing pressure on each other to back down, in a reversal of a dialogic stance, although there is almost certainly no apparent route by which the Court could do so. There is no political process at the international level which could be utilised. If Parliament eventually takes the ‘incompatible’ option, but there is a full debate as to the basis for the degree of disenfranchisement, taking full account of Hirst and Scoppola, it is conceivable, in accordance with the notion of enhanced subsidiarity which appeared to underlie the Brighton declaration, that the Court might in future view that option as in fact compatible with para 3. Conceivable but highly improbable. From an anti-European standpoint that would obviously be a welcome result.

Conclusions

The conclusion of this piece is that the mechanisms for dialogue and subsidiarity are already present – the UK and the Court need to learn to operate them more effectively and sensitively – although that may be too late in relation to prisoners’ voting rights. Protocol 15 does not add much, it is suggested, to that process in formal terms, but may aid in impelling the Court to take a more cautious or nuanced approach to issues of this nature (taking a Scoppola-type of stance rather than a Hirst one), and to paying greater attention to consistency in its operation of the margin of appreciation doctrine. Parliament might more readily recognise that the UK’s margin of appreciation might be more fully triggered in respect of a particular decision only if a full balancing analysis has occurred in the Parliamentary process. Protocol 16 might be of value in allowing the Court to talk to the Supreme Court at an earlier stage in potential conflicts. It is also arguable, albeit controversially, that Protocol 16 should have made provision for advisory opinions to be sought by national legislatures (and should therefore have made an exception to the in abstracto principle). Clearly, this message is unlikely to gain much purchase amid the current anti-ECHR rhetoric of a number of senior Conservatives; the project of manipulating popular perceptions of the ECHR is unlikely to be furthered by avoiding stand-offs with Strasbourg. But there are a number of possible outcomes of the 2015 general election within which such rhetoric would be politically difficult, meaning that putting more effort into fostering a dialogic approach could be valuable.

Helen Fenwick is Professor of Law at the University of Durham.

Suggested citation: H. Fenwick, ‘Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?’   UK Const. L. Blog (26th November 2013) (available at http://ukconstitutionallaw.org)