Tag Archives: Hirst v UK (No.2)

Craig Prescott: Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL

Vincent_Willem_van_Gogh_037As is well known to readers of this blog, the issue of prisoner voting has been a long running and high profile saga. The Justice Secretary, Chris Grayling has argued that it is a ‘totemic issue’ that shows how the ECtHR has ‘lost democratic acceptability’ (Guardian, 20 Nov 2013). However, this issue can only be understood against the background of concern about the Convention. David Cameron captured this feeling when discussing the Bill of Rights Commission by arguing that it is ‘about time we started making sure decisions are made in this Parliament rather than in the courts’ (BBC News, 16 Feb 2011). At its broadest level, prisoner voting shows how the core principles of the UK constitution, parliamentary sovereignty and the rule of law, can collide with each other.

Given the combination of law and politics that pervades this issue, it was natural for the UK Constitutional Law Association and the Study of Parliament Group to hold a joint event to explore the issue in depth, but thankfully, one step removed from the more frenzied political debate. We were fortunate to have four speakers who have been involved in different aspects of the debate. The discussion was started by Colin Murray, Senior Lecturer at the University of Newcastle, who was the Specialist Adviser to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill. He was followed by Dr. Michael Pinto-Duschinsky, Senior Consultant on constitutional affairs to Policy Exchange, who was a member of The Commission on a Bill of Rights. Jeremy Waldron, Chichele Professor of Social and Political Theory and Fellow, University of Oxford, All Souls College and University Professor, NYU School of Law, drew on his evidence he gave to the Joint Committee on the Draft Bill. The final speaker was Aileen Kavanagh, Associate Professor, University of Oxford and Tutorial Fellow at St Edmunds Hall College, has in her research, considered one key feature of Hirst, which is what weight the courts should place on the parliamentary discussion of human rights (or lack of) when assessing legislation for compatibility with human rights.

The aim of this event was to discuss the broader questions that surround this issue. For a discussion of the specific issue of whether prisoners should receive the right to vote, the reader should direct their attention to Alison Young’s previous post on this blog, Prisoner Voting – Human or Constitutional Right? And to the exhaustive report from Joint Committee on the Draft Voting Eligibility (Prisoners) Bill).

Colin Murray

Colin Murray argued that in Hirst, the ECtHR was rather careful in its judgment, and that they toned down the decision in the Scoppolajudgment that followed Hirst. The court held that the current law went too far, and hoped that the UK would respond to remove the ‘blanket ban’. In many ways, prisoner voting flags up the rigidity of the proportionality test. It is very difficult to argue that a complete ban was proportionate and necessary to achieve a legitimate aim. In this way, the proportionality test can yield some strange decisions on moral issues. The argument from the British Government in Hirst, that this was simply a political question, to be decided through the political process and not the courts, simply did not wash with the ECtHR.

Murray then discussed the legislative response, in particular the Joint Committee on the Draft Bill that reported on 18th December 2013. Their conclusion was that those sentenced to twelve months or less and those in the last six months of their sentence should get the vote. As Jeremy Waldron stated, this seems a reasonable compromise. However, we are still waiting for the government’s response to the report. It was a notable absentee in the Queen’s Speech for the last session of this Parliament, suggesting that this has been kicked into the long grass again, perhaps until after the general election in May 2015.

This issue tells us about constitutionalism in the UK, the role of principle of parliamentary sovereignty and its counterweight the rule of law. Prisoner voting tells us where that system is creaking. Fundamentally, the government’s argument is that the right to vote is different from the “right to free elections” as contained in Art 3 of Protocol 1 to the ECHR: it is a privilege granted by Parliament; but the European Court of Human Rights (‘ECtHR’) is clear that today, voting is a right, and you tamper with it at your peril. The Government thinks it has a strong hand, and can put the ECtHR in the corner, and clip the wings of the Convention, but the Government has taken a more difficult position than they believe. The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill took the view that voting is a right, and should not be removed without a good reason. Murray argued that it is the defining legitimating factor that justifies parliamentary sovereignty. Tamper with this, even slightly, at your peril.

When the Reform Act of 1867 moved the jurisdiction of hearing election petitions (the legal process by which an election result can be challenged) from Parliament to the courts, a rash of extra cases was feared. Yet, this did not happen, and cases such as Watkins v Woolas are rare. Even then, the courts are castigated for this, just read Michael White’s comment on that case in the Guardian. Generally, courts don’t want to get involved in the political process and the line of judgments from Hirst to Scoppola in many ways follow this tradition and are timid judgments from the ECtHR. The courts, rather than undermining parliamentary sovereignty, are striving to protect democracy at all costs. A constant failure to heed warnings such as this could blow parliamentary sovereignty apart as the legitimating factor of parliamentary sovereignty is compromised.

Michael Pinto-Duschinsky

Michael Pinto-Duschinsky focused on the broader issues that prisoner voting raises and discussed the architecture of human rights protection. Drawing upon his experience on the Bill of Rights Commission, when he was ‘surrounded by lawyers’ he wanted to avoid a debate about the terms of reference and categorically stated that the issue is not prisoner voting itself.

The real issue is who makes the final decision, and the interesting aspect to this debate is that people with many things in common can have polar opposite views. Pinto-Duschinsky compared himself to Lord Lester of Herne Hill, who was one of the most vociferous campaigners for the Human Rights Act. They were both shaped by the holocaust, abhor torture, have campaigned for rights and were engaged in the battle for civil rights in the Deep South during the 1960’s. However, whereas Lord Lester sees the law as being the key to achieving human rights, Pinto-Duschinsky, while acknowledging the valuable role of courts, feels that they are no more infallible than legislatures. He argues that, in a democracy, court decisions must be capable in some circumstances of a democratic override by the legislature.

Pinto-Duschinsky highlighted how for every example in favour of the courts having the final say as opposed to the political process, an example can be found that goes the other way. The example given by Sir John Laws in his celebrated article, ‘Law and Democracy’ ([1995] PL 72) of the Athenians, under direct democracy, sentencing to death eight commanders for the loss of their crews in bad weather during the battle at Arginusae, can be can be contrasted against the verdict of the US Supreme Court in Dred Scott v Sandford 60 US 393 (1857) which was a significant contributing factor to the Civil War. The idea that judges equal good, whilst democracy equals bad, is far too simplistic. Both play a role, but issues such as prisoner voting should ultimately rest with the legislature. Courts, such as the ECtHR, which have little democratic legitimacy, should be careful when stepping into political territory such as this.

Jeremy Waldron

Jeremy Waldron agreed that prisoner voting has to be settled by Parliament, it’s not an issue like abortion which could be settled by a court: it must be settled legislatively. ‘Settled legislatively’ has a specific meaning. Although a vote was taken in the House of Commons with 234 to 22 votes in favour of retaining the ban (HC Deb, 11 Feb 2011, Vol 523, Col 492-586,), that cannot settle the issue legislatively. Settling a matter legislatively requires the due process that legislation represents, the rhythms of the legislative process, of the Second Reading, Committee, Third Reading and Report Stages in both the chambers of Parliament.

However, Parliament must acknowledge that they are talking about rights. In particular, voting has been described by some, including William Cobbett as the ‘right of rights’. When rights are at stake, Parliament should proceed more carefully. There is a need to avoid knee-jerk reactions. British justice is wonderful, but not on all matters. There is no harm in having issues flagged up by the courts, in a weak system of judicial review, where the courts do not have a final word. In this sense, judicial review is a canary in the mine, a warning system to alert parliaments to problems. .

It must be emphasised that this is a right that goes to the heart of democratic legitimacy. Parliamentary sovereignty derives its legitimacy from being elected by the citizenry, which in turn, requires that citizens possess the right to vote. Parliament depends on the rights of millions to vote for its authority and legitimacy. As John Hart Ely stated in Democracy and Distrust, there is a case for a strong form of judicial review when a discrete minority has been shut out of the representative system. Arguably, the issue of prisoner voting complies with those requirements. This does not mean that courts should consider it at the expense of Parliament, but that Parliament should consider the courts’ perspective. Majorities are not incapable of resolving flaws of a majoritarian system. However, they must avoid the knee-jerk sovereignty based attack that argues that the court is overstepping its jurisdiction at the expense of national parliaments. Such issues need to be addressed in a sober deliberative spirit, and constitutional arrangements that allow that to happen should be applauded.

Pinto-Dushinsky in response, pointed out that no such reflection took place when signing up to the ECHR in the first place, and no debate took place on Protocol 1, as under the Ponsonby Rule treaties are laid before Parliament without a debate being required (although one can be requested, now see Constitutional Reform and Governance Act 2010, ss. 20-25). There is a conflicting debate about who has the final word, as a matter of law at a domestic level it’s clear that the last word remains with Parliament. Under the Human Rights Act, s 4 (6), a declaration of incompatibility does not affect the validity of the Act of Parliament in question. But politically, politicians treat a declaration as a strike down power. As a matter of international law, the final say appears to rest with the ECtHR, and the UK could be liable for damages for being in breach of the ECHR. However as Murray pointed out, the ECtHR has no power to compel those damages being paid. As is common with the UK constitution, it seems that the most appropriate answer would be restraint from all sides.

Aileen Kavanagh

Aileen Kavanagh raised an important question: why out of all the issues with the ECtHR has the Government and Parliament made such a big issue out of prisoner voting? Why has this been the issue over which to fight?

Firstly, the issue clearly fits into the ongoing concerns about the ECHR that a large section of Conservatives hold, in particular its consequences for parliamentary sovereignty. But also, politicians have seized upon this issue, because at the very least, they can make the argument that a prisoner, who by definition has not ‘obeyed the rules’ should have no role in formulating those rules and so should not be allowed to vote. In this sense a politician can take, what they perceive to be, a ‘respectable stance’ against prisoner voting, in a way that a politician simply cannot over an issue such as torture. A politician arguing against prisoner voting can claim that they are protecting fundamental principles such as the sanctity of the vote. There is also a basic disagreement over whether voting is a right or privilege, which is available to those who fulfill certain conditions. More generally the issue of prisoner voting fits into the broader narrative on criminal justice of being ‘tough on crime’ and no political party wants to be seen to be the softest on crime.

Kavanagh also highlighted how Art 3 of Protocol 1 to the ECHR does not explicitly provide for the ‘right to vote’. It can fit into the criticism that the court increasingly stretches its ‘living instrument’ doctrine too far, and finding a ‘right to vote’ is a big extrapolation from the text. However Jeremy Waldron flatly disagreed with this point, arguing that the Art 3 requires ‘free elections’, held by ‘secret ballot’, ‘under conditions which will ensure the free expression of the people’, in this context, he argues that the ‘right to vote’ is a necessary implication.

There are issues with the Hirst case itself. Its highly unfortunate that the domestic case only went to the Divisional Court, [2001] EWHC Admin 239, with leave to appeal refused by the Court of Appeal on the grounds of there being no reasonable chance of success, [2001] EWCA Civ 927. If more judicial muscle had been applied at the domestic level then the ECtHR might have responded differently. Aileen Kavanagh captured the impact of the ECtHR’s judgment by stating that the judges misjudged the politics on the issue. They simply thought that they were dealing with a thirty year old law, which drew on Victorian legislation and the judges did not appear to understand that reasonable people could and did disagree over prisoner voting. The Court drew on previous case law and assumed a right to vote, with little justification being given. They dismissed the fact that thirteen out of 47 member states have bans on prisoner voting, when this could have been a ground on which to apply the margin of appreciation. Another interesting feature is how the Court drew a negative inference from the lack of parliamentary debate on the issue, which, as Lord Sumption suggested in Chester,could in principle be an example of a ‘complete consensus’ [para 136] on the matter. Probably this aspect would be best viewed as a neutral consideration.

The Study of Parliament Group and the UK Constitutional Law Association would like to thank all four speakers for a clear and illuminating discussion and Alexander Horne for chairing the discussion. A special thanks should go to Liz Carter at UCL and Jack Simson Caird for organising the event.

Craig Prescott is a Teaching Assistant at the University of Manchester and Visiting Tutor at King’s College London.

Suggested citation: C. Prescott, ‘Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL’ UK Const. L. Blog (9th July 2013) (available at http://ukconstitutionallaw.org)

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Helen Fenwick: Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?

helen1This 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)

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Alison L. Young: Prisoner Voting: Human or Constitutional Right?

young_alison-l2As is well known, in Hirst v UK (No 2) the Grand Chamber of the European Court of Human Rights concluded that Section 3(1) of the Representation of the People Act 1983, which removed the franchise from prisoners, was a disproportionate restriction of the right to vote found in article 3 of the First Protocol to the European Convention on Human Rights. After two consultation papers, further judgments from the European Court of Human Rights, a declaration of incompatibility from the Scottish courts, a series of criticisms from the Committee of Ministers of the Council of Europe and the Joint Committee of Human Rights, a change of Government and a House of Commons debate, the Voting Eligibility (Prisoners) Draft Bill was proposed and is currently being scrutinised by a Joint Select Committee. To add to the mix, we are awaiting judgment on the latest discussion of the issue by the UK Supreme Court, in R (Chester) v Secretary of State for Justice and McGeogh v Lord President of the Council, heard on 10 June, not to mention the adjourned case of Firth v United Kingdom.

This post will comment on one argument made by the Rt Hon David Davis MP and the Rt Hon Jack Straw MP, both in their contributions to the House of Commons debate on prisoner voting and in the oral evidence submitted to the Joint Select Committee on the Draft Bill. Their argument does not concern the merits, or otherwise, of prisoner voting, examining instead whether the issue should be determine by the European Court of Human Rights, or by the Westminster Parliament. Their claim is not a mere assertion of the sovereignty of the Westminster Parliament over the European Court of Human Rights. Rather, they argue that there are sound constitutional reasons for the Westminster Parliament to determine whether prisoners should vote. They argue that the European Court of Human Rights has taken a creative approach, going beyond an interpretation that focuses on the intentions of the authors of the European Convention on Human Rights. In doing so, the Court has gone beyond its constitutional ambit, in particular because there is no ability for any form of democratic response to the decisions of the European Court of Human Rights. Jack Straw, in particular, draws on Lord Hoffmann’s 2009 lecture to the Judicial Studies Board. Lord Hoffmann argued that the European Court of Human Rights was not suited to take decisions as to the way in which different rights should be balanced, or the application of general broad provisions of rights to very specific situations.

There are two issues here. What is the proper constitutional ambit of the European Court of Human Rights as a ‘European’ as opposed to a ‘national’ institution and what is its constitutional ambit as a ‘court’ as opposed to a ‘legislature’? The answer to this question appears to depend upon the nature of the right in question. The argument is that the European Court is constitutionally suited to decided broad or abstract rights, but specific applications of rights are more suited to national courts. The more a specific application of a right requires a balancing of different rights, or an assessment of different rights and principles, the more the issue is suited to resolution by legislatures. The European Court of Human Rights deals with abstract, fundamental ‘human’ rights. National courts and legislatures deal with how rights are applied to specific situations, or how rights and principles are balanced. This is a form of ‘constitutional’ right – assessing what ‘constitutes’ the specific application of a right according to the legal and constitutional principles prevalent in that national community.  We need to unpack these issues to see whether they form a sound basis for dividing power between the ECtHR and national courts and legislatures.

An overly creative approach?

Has the European Court of Human Rights been overly creative when assessing whether prisoners should be allowed to vote? Difficulties emerge when we try and apply this latent distinction between ‘human’ and ‘constitutional’ rights by looking at the distinction between broad rights and their specific application. Not only is it easy for this to collapse into a mere matter of degree, but the classification of the right may depend upon your particular focus. For example, if we are examining the issue as one of ‘the right of prisoners to vote’ then the issue becomes one that is more specific constitutional right and therefore for national courts. If we are examining the ‘right to vote’ then the issue concerns a broad human right, with the exclusion of prisoner voting needing to be justified as an exception to this broad right, a matter for the European Court of Human Rights to determine. If the justification of the restriction of the right to vote for prisoners depends upon the need to balance other rights and interests then this becomes a matter for national legislatures. As all appear to be sensible accounts of determining whether it is contrary to the ECHR to disenfranchise some or all prisoners, it becomes reasonable to argue whether the issue should be determined by the ECtHR, national courts or national legislatures or a combination of all three. It is hard to regard the ECtHR, therefore, as being overly creative.

Does a different picture emerge when we focus on the extent to which a specific application of a right requires a balancing exercise, weighing up different rights or balancing rights and interests? This distinction can be just as difficult to apply in practice. Does prisoner disenfranchisement depend upon the proper interpretation of the Convention right to vote, suited to the European Court of Human Rights, or does it depend upon a delicate balance of rights and interests and hence is more suited to national legislatures? If there is any consensus that emerges from cases examining prisoner disenfranchisement, it is that the right to vote is seen as a ‘core’ or ‘fundamental’ right, but that the issue of whether prisoners should vote requires a delicate balance of the right to vote against other rights and interests. This is illustrated, for example, in paragraph 84 of Hirst v UK (2). The European Court of Human Rights made it clear that its role was limited “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”. This assessment was repeated in paragraph 85 of the Scoppolla decision.  It is an approach running through the case law on prisoner voting in Canada, Australia and South Africa, as well as in the approach of the Court of Appeal in Chester. Here the courts do not grant a ‘margin of appreciation’ to signatory States, recognising their different constitutional and social cultures, instead granting a ‘wider discretionary area of judgment’ to the legislature. Again, it is hard to conclude here that the European Court of Human Rights has exceeded its proper constitutional role when deciding cases on prisoner disenfranchisement. Prisoner disenfranchisement is a complex and contestable issue. It is reasonable to disagree both as to whether those who commit serious enough offences should not be allowed to vote and, if so, how serious the offence need be to result in disenfranchisement. Many decisions are decided in favour or against the disenfranchisement of certain prisoners by a narrow majority of judges. The only certainty that seems to emerge is that blanket bans, disenfranchising all prisoners, are a disproportionate restriction on the right to vote. This conclusion is reinforced when we look at the outcome in the Scoppolla case. Here an Italian law removed the right to vote from prisoners convicted of a specific series of offences, or those sentenced to terms of three years or more, and removed the right to vote permanently from those sentenced to life sentences or terms of five years or more, subject to a procedural right for the individual to apply for his right to vote to be returned. The court concluded that this was not contrary to Article 3 of the First Protocol. The Italian law was not a blanket ban and it was within the margin of appreciation for the Italian government to regulate prisoner voting in this manner, the ban on voting relating to the serious nature of the offences committed.  There are cases where it is much clearer that the European Court of Human Rights has taken a creative approach than the cases on prisoner disenfranchisement.

Lack of a democratic override?

Let us assume that it was clear that the European Court of Human Rights had been too creative. Jack Straw’s argument is that creative judicial interpretations are far less dangerous in legal systems where there is the opportunity for a democratic correction by the legislature if courts provide too creative an interpretation of rights. The specific example he provides is that of a democratic override in the US, where an overly creative interpretation of the US constitution by the courts can be corrected by Constitutional amendment. If this is all that is required, then it is arguable that the ECHR does provide for a democratic response in a similar manner. The ECHR is a Treaty. Its provisions can be amended by those who have signed up to the Treaty. It may also be easier in practice to modify the Treaty establishing the ECHR than it is to amend the US Constitution.

It may be that Jack Straw has provided a particularly weak example; maybe he would have been better relying on the provisions of the Human Rights Act 1998. But, even if we require more of a democratic override than its mere theoretical possibility, Treaty amendment is not the only way in which democratic input can be given. First, it is possible for the United Kingdom government to appeal decisions to the Grand Chamber of the European Court of Human Rights, as it did in Hirst (2) When presenting its argument to the Grand Chamber, reference can be made to the legislative debate. The same opportunity occurs when the UK government makes representations to the court in cases against other States. The UK government made submissions to the Grand Chamber in Scoppolla v Italy. In doing so it referred to the House of Commons debate on prisoner voting. This was also referred to by the Court in its judgment. The Grand Chamber also does not decide issues in a vacuum. It is aware of the reaction of other legislatures, as well as on-going negotiations between the Committee of Ministers of the Council of Europe and the Governments of the Signatory States.  These may be a predominantly ‘governmental’ as opposed to a ‘legislative’ responses. But the way to correct this is through domestic arrangements, ensuring more legislative engagement with and accountability over Governmental responses and interventions.

Need for democratic override?

The strongest argument in favour of a democratic override is the recognition that the European Court of Human Rights may make mistakes. If prisoner disenfranchisement can reasonably be seen as an issue about the proper scope of the human right to vote, or a specific application of this broad right to a particular constitutional background which may or may not require a balancing of complex social rights and interests, then there is no wonder that there will be disagreement as to whether the Court is being too creative. But does this correction need to be by a legislature? First, if the issue is one of the application of a human right to a specific legal or constitutional situation, then  any correction needed may be better coming from national courts than national legislatures. We can see this when we look at one of the examples Lord Hoffmann n his 2009 lecture, Al Khawaja and Tahery v UK. Lord Hoffmann criticised the judgement of the European Court of Human Rights as too creative. The judgment was also criticised, and ultimately not followed in the Supreme Court decision of Horncastle, as the decision appeared to be based on a misunderstanding of the common law. In the appeal of Al Khawaja before the Grand Chamber, the Government relied on this misunderstanding, and the Grand Chamber referred to the judgment of the Supreme Court in Horncastle. The Grand Chamber  looked specifically at the broader provisions of English law and referred to the approach of other common law jurisdictions to this issue. It concluded that there had been no breach of the Convention with regard to the reliance on hearsay evidence in the conviction of Al Khawaja, but that the Convention had been breached with regard to its specific application to Tahery.  Second, there is no guarantee that the legislature is better placed to balance social rights and interests than the courts, particularly in areas as sensitive as prisoner disenfranchisement. The recent legislation removing the franchise from prisoners in New Zealand provides an interesting example here. Legislation was enacted to impose a blanket ban on prisoner voting, despite the statement of the Attorney General to the legislature that this would be contrary to the New Zealand Bill of Rights Act 1990 and to New Zealand’s human rights obligations in international law.  The legislation was enacted by a narrow majority and it is probably uncontroversial to remark that the arguments presented in favour of the Bill were not a prime example of the merits of democratic debate as a means of protecting rights.

Constitutional or Human – does it matter?

Regardless of whether we categorise the right of prisoners to vote as a ‘human’ or a ‘constitutional’ right, its resolution is complex. We can reasonably phrase the issue as one of the limitation of a fundamental human right, or as the specific constitutional right whose determination involves the balancing of complex social, moral and political philosophies. But, maybe in doing so we are hiding a more challenging issue. Problems arise because the right may be constituted by the values formed by reasoned reflection by the judiciary as to the content of fundamental rights and an assessment of whether the reasons provided for restricting a right hold water combined with a reasoned reflection of the legislature to balancing broader social and moral principles. Or it may just constitute what people think intuitively, or how they feel about granting the right to vote to prisoners – whether that be physically sick or otherwise.   The more the joint select committee continues to focus on obtaining informed advice, and the more the courts provide detailed reasoned for their conclusions, the more the potentially creative interpretations of the European Court of Human Rights can be corrected. Perhaps more importantly, the more we can ensure that the ‘constitutional’ right of all/some/no prisoners to vote will be worthy of the name.

Alison L. Young is a Fellow of Hertford College, University of Oxford.

Suggested citation: A. L. Young, ‘Prisoner Voting: Human or Constitutional Right?’  U.K. Const. L. Blog (27th September 2013) (available at http://ukconstitutionallaw.org).

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Chintan Chandrachud: Prisoner Voting Rights in India

ChintanWhether prisoners should have the right to vote has been the subject of intense political debate in the UK for a few years now. In Hirst ((2006) 42 E.H.R.R. 41) as well as Scoppola ([2012] E.C.H.R. 868), the European Court of Human Rights (ECtHR) held that blanket prohibitions on the voting rights of convicted prisoners are incompatible with article 3 of the First Protocol to the European Convention on Human Rights. The Scottish Registration Appeal Court also made a declaration of incompatibility against the UK’s blanket ban on prisoner voting (Smith v Scott [2007] C.S.I.H. 9). The British government has introduced a draft bill for pre-legislative scrutiny in which two out of three options laid out by the government seek to purge the incompatibility, while the third restates the existing ban. Regardless of how the story develops, the debate that has unfolded is an important one in the context of a constitutional democracy which pledges a commitment to human rights.

A similar concern underpins the short but significant decision of the Supreme Court of India in Chief Election Commissioner v Jan Chaukidar (Civil Appeals 3040-3041 of 2004, decided on 10 July 2013). This was an appeal from the judgment of the Patna High Court declaring that prisoners and those in lawful police custody would be disqualified from contesting elections to the Union Parliament or the legislative assemblies of states. The case arose in the context of the steady flow of politicians accused of criminal offences into legislative bodies (several studies reveal that about a quarter of the elected members of the Indian Parliament face criminal charges). An NGO filed a public interest litigation petition seeking a declaration that convicted and undertrial prisoners had no right to contest elections.

The NGO’s argument (which the court accepted) was framed as follows. The Representation of the People Act 1951 is a federal statute that governs the conduct of elections in India. It stipulates that one of the qualifications for membership of legislative bodies is that the candidate must be an ‘elector’. It also provides that ‘no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police’ (except in cases of preventive detention). Relying on these and other statutory provisions, the court decided that since prisoners were deprived of the right to vote, they could not be considered as ‘electors’ and would automatically be disqualified from standing for elections during periods of incarceration.

Although the court’s intentions may have been laudable, its line of reasoning is problematic at several levels. To begin with, the Supreme Court took for granted that the blanket ban on prisoner voting is itself compliant with fundamental rights, a position which is highly controversial in the UK and elsewhere and has not been considered by the Indian Supreme Court for the last sixteen years. As in the UK, there is no offence-based or sentence-based classification of prisoners in India, with the result that prisoners are debarred from voting irrespective of the gravity of the offence that they have committed or the length of their sentence. But the ban on prisoner voting in India is more sweeping than that that imposed by section 3 of the UK Representation of the People Act 1983 in one respect. Whereas the UK prohibits convicted prisoners from voting, the Indian disqualification extends to those awaiting trial and those in lawful police custody as well. Remarkably, this means that those whom we presume innocent until proven guilty are denied the right to vote.

One of the reasons for which the Supreme Court found it unnecessary to examine the constitutionality of the ban on prisoner voting was that the court erroneously considered the right to vote as a statutory endowment which can be revoked at any time by a majority in Parliament. It remarkably endorsed the observation of the Patna High Court that it is a ‘privilege to vote, which privilege may be taken away.’ The characterisation of the right to vote as a privilege is deeply problematic. It fits poorly with most modern conceptions of democracy, which accord a fundamental (and sometimes even predominant) status to the right to participate in democratic decision-making through the ballot box.

The Supreme Court founded the decision that prisoners have no right to contest elections based on the argument that prisoners are not electors, since they are disqualified from voting. This interpretation implies that the disqualification from contesting elections will remain so long as prisoners are debarred from voting. This does not bode well for future challenges to the sweeping ban on prisoner voting rights in India, since the invalidation of this statutory provision would bring down with it the ban on contesting elections, which has received widespread judicial and public support in the recent past. So the court has unknowingly made it more difficult for itself to strike down the ban on prisoner voting rights in the future.

Overall, the Supreme Court’s judgment is based on a skewed understanding of democracy. This is demonstrable through a concluding portion of the Patna High Court judgment, which was affirmed by the Supreme Court on appeal: ‘[t]he issue of crime as attached to candidates or voters pollutes the entire election process. It effects [sic] the sanctity of elections as a whole. It taints democracy.’ Even if one were to agree that disqualifying prisoners from contesting elections is a proportionate restriction on political rights, it is difficult to accept that enabling prisoners to vote would stain the sanctity of the democratic process. An important measure of the success of a democratic state is how it treats those that lie at the margins, including prisoners. The ban on prisoner voting then, which was glossed over by the Supreme Court, is what really taints the democratic process by excluding an entire segment of peoples from the exercise of their first democratic right. The Supreme Court would have benefitted from at least examining whether, to borrow the words of the ECtHR in Scoppola, the ‘general, automatic and indiscriminate restriction’ on the right to vote is permissible in a professedly diverse and inclusive constitutional polity.

Chintan Chandrachud is an MPhil Candidate at St Catherine’s College, University of Oxford

Suggested citation: C. Chandrachud, ‘Prisoner Voting Rights in India’  UK Const. L. Blog (8th August 2013) (available at http://ukconstitutionallaw.org)

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Colm O’Cinneide: Prisoners Votes (Again) and the ‘Constitutional Illegitimacy’ of the ECHR

The relationship between the UK and the European Court of Human Rights is once again in the news. On the 22th May last, the Grand Chamber of the Strasbourg Court delivered its judgment in Scoppola v. Italy (No. 3), Application No. 126/05. This decision marks a potentially decisive moment in the long-running saga of prisoner voting rights. In essence, the Grand Chamber reaffirmed its ruling in Hirst v UK (No. 2) that a blanket and indiscriminate prohibition on prisoners voting was not in conformity with Article 3 of the First Protocol (the right to free elections). However, it also recognised that states enjoyed a wide margin of discretion when it came to regulating the circumstances in which prisoners should be entitled to vote. In particular, ‘Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’, as long as they refrain from imposing ‘any general, automatic and indiscriminate restriction’ (see para. 102 of the judgment).

In other words, the Hirst decision has been upheld, but the UK has been given room to manoeuvre in how it responds to this requirement. However, the UK government must bring forward legislative proposals to amend the existing blanket ban within six months. If it does not, then in accordance with the Court’s ’pilot’ judgment in Greens and M.T. v UK, the 2500 pending cases before the Court on this issue will be ‘unfrozen’, which in turn may expose the UK to multiple claims for damages.

The judgment in Scoppola has been excellently analysed in depth by a number of commentators: see in particular Adam Wagner’s posting on the UK Human Rights Law blog, Carl Gardner’s analysis at Head of Legal and Marko Milanovic’s comment on the judgment on the EJIL: Talk blog. As Joshua Rozenberg has argued, the Court has effectively extended an olive branch to the UK government, which it might be wise to accept. However, the judgment has also attracted the usual media outrage, as examined by ObiterJ on Law and Lawyers, with the Daily Mail describing the decision as representing ’Contempt for Democracy’. The Prime Minister has stated at Question Time in the House of Commons that the will of Parliament should prevail over the views of the Strasbourg Court on this issue (H. C. Debs. 23 May 2012, col. 1127), while Jack Straw and David Davis have in a letter to the Daily Telegraph called on Parliament to defy Strasbourg.

It appears therefore as if no easy resolution to the stand-off on prisoner voting rights between the Court and the UK is yet in sight. It has been just over one month since the Brighton Declaration, where as Mark Elliott has discussed on this blog the UK joined the other state parties to the ECHR in affirming the crucial role played by the Strasbourg Court in protecting human rights and rule of law across Europe and committed itself to respecting judgments of the Court. (See in particular paragraph 3 of the Declaration, which states in unambiguous language that [w]here the Court finds a violation, the State Parties must abide by the final judgment of the Court’.) The UK government thus appears to have got itself into a tangled mess. Its words and deeds in respect of the ECHR appear to be getting dangerously out of synch. Even if legislation amending the blanket ban on prisoner voting is laid before Parliament within the six month time-limit imposed by the Court, the Prime Minister’s comments will certainly have fortified parliamentary opposition to making any concessions on this issue. As things stand, the UK is still locked on a collision course with Strasbourg, unless a dramatic political change of direction takes place.

Much of the hostility directed towards the Strasbourg Court is based on a visceral distaste of giving prisoners voting rights. Famously, even contemplating this idea appears to make the Prime Minister nauseous. Given the quasi-sacred status accorded to the idea of universal franchise within the UK constitutional order (the doctrine of parliamentary sovereignty is now justified on the basis that the House of Commons is elected by popular vote), it is perhaps odd that Strasbourg’s mild request for amendment of the blanket disenfranchisement imposed on prisoners has attracted such a backlash. However, the rights and wrongs of this issue have been discussed before on this blog by Jeff King.

What has not been discussed in detail here or elsewhere is the argument made by Jack Straw MP, David Davis MP, Michael Pinto-Duschinsky, Dominic Raab MP and others that the Strasbourg Court is acting in a constitutionally illegitimate manner in insisting on a repeal of the blanket ban on prisoners voting, and that it would be a violation of democratic principles for the UK to defer to the decision of an unelected international court on such a manner. This argument drives much of the opposition to the Court’s rulings in this context. It also explains why David Davis and Jack Straw in their above-mentioned letter to the Telegraph have described these judgments as infringing ‘our constitutional rights’. It even underscores the call by Pinto-Duschinsky, Raab and others for the UK to consider withdrawing from the jurisdiction of the Court and/or from the Convention, which they argue would be a necessary and justified step if the Court fails to mend its ways and exercise greater self-restraint.

This argument that it is ‘constitutionally illegitimate’ for Strasbourg to rule against the UK on the blanket ban on prisoners voting is based on two distinct but inter-related elements. First of all, it assumes that the European Court of Human Rights has gone beyond the legitimate scope of its authority by treating the Convention as a ‘living instrument’ and adopting a teleological interpretative approach to its provisions. In its eyes of its critics, the original drafters of the Convention never intended it to be read in this way: as a result, the Court is abusing its authority when in a decision such as Hirst it interprets the right to free elections in Article 3 of the First Protocol as extending to cover the right to vote. Secondly, the assumption is also made that it is contrary for democratic principles for the UK to bind itself to follow the determinations of an unelected body such as the Strasbourg Court. However, both these assumptions are open to challenge.

To begin with, the argument that the Court is going beyond its mandate is open to question. As Danny Nicol has argued, the travaux préparatoires of the ECHR make it clear that there was no consensus among the original negotiators that it should be read in a narrow and minimalist manner (‘Original Intent and the European Convention on Human Rights’ (2005) Public Law 152-17). Furthermore, international treaty instruments such as the Convention are usually expected to be interpreted in a purposive manner, not by reference to the original intent of their drafters. In their letter to the Telegraph, Davis and Straw state that the job of the Court ‘is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less’, and go on to say that the Vienna Convention on the Law of Treaties requires that ‘international treaties must be interpreted as their drafters intended’. However, this appears to be a straightforwardly incorrect interpretation of international law. The provisions of the Vienna Convention are notoriously vague: however, Articles 31 and 32 make it clear that courts should focus on the ‘object and purpose’ of treaties, and that the intention of the drafters can only ever be taken into account in a ‘supplementary’ manner. The ‘living instrument’ approach adopted by Strasbourg is very similar to that adopted by other human rights bodies, as well as by constitutional and supreme courts in Europe and across the Commonwealth. Of course, views will differ on whether the Court got it wrong when it decided Hirst, Greens and Scoppola. However, it is by no means obvious that its overall interpretative approach is ‘illegitimate’.

Secondly, the argument that it is undemocratic for the UK to defer to decisions of the Strasbourg Court can also be challenged. The UK consented to the jurisdiction of the Court and voluntarily undertook to abide by its decisions. This would appear to be completely compatible in principle with the principle of democratic self-governance and national sovereignty: as Jeremy Waldron has commented, ‘[p]art of the point of being a sovereign is that you take on obligations’. Furthermore, as previously noted, Parliament is under no constitutional obligation to give effect to a Strasbourg judgment: it can choose to disregard any judgment of the Court, or even to withdraw from the Convention, at any time. If it does so, the UK may experience strong diplomatic pressure to change its mind from other states. Its international credibility may also be fatally undermined by a refusal to respect a judgment of the Court, as this would call into question its commitment to the principles of human rights and rule of law which it consistently demands that other states respect. However, Parliament, not Strasbourg, retains the final say.

This means that the current relationship between the UK and the Strasbourg Court would seem to be entirely compatible with democratic principles. The fact that the UK faces considerable pressure to comply with Hirst, Greens and Scoppola does not mean that the Court’s role under the Convention is illegitimate or anti-democratic: it simply reflects the fact that the expectation that Parliament should respect international law, human rights and the rule of law may at times require it to exercise its powers differently from how it would if left to its own devices. If anything, the Strasbourg Court could be seen as playing a positive role in enhancing British democracy: as Richard Bellamy (no lover of judicial supremacy) has argued, it helps to protect the rights of those who do not enjoy effective access to Parliament and the political process. It also helps to link democracy in the UK to democratic progress elsewhere, and makes possible a convergence of standards which elevates rights protection, democracy and the rule of law across the Council of Europe zone as a whole.

None of these objections constitute a full and complete answer to the Court’s critics. Neither do they establish a complete case as to why Parliament should defer to the Court’s views on prisoner voting. Opinions will inevitably differ as to when Strasbourg has crossed the line between law and politics, or when it has made a questionable decision. However, the claim that the Court’s position on prisoner voting rights is ‘constitutionally illegitimate’ seems to be seriously open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  

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