The authority and constitutional legitimacy of the European Court of Human Rights was very much in issue last week within the media and in Parliament in the United Kingdom.
At the start of the week, the ECHR was in the headlines following the publication of a report entitled ‘Bringing Rights Back Home’ by the independent ‘think tank’ the Policy Exchange. The Report was not devoted to the Strasbourg Court as such, but, as readers will be able to see, there was strong criticism of its role and function, both generally, and from a British perspective in particular. A response, from a leading human rights QC in the UK, was published in the national newspaper The Independent.
The much bigger issue of the week, however, was a debate by backbench MPs in Parliament over whether prisoners should be given the right to vote, and so whether the United Kingdom should comply with – or flatly refuse to observe - the Strasbourg Grand Chamber judgment in Hirst v United Kingdom of 2005. That judgment in no way requires all prisoners to be given the right to vote; it found a violation of Article 3 of Protocol 1 given the blanket ban on prisoner voting that existed, and still exists, in the UK. The Grand Chamber judgment saw the Court divided (12 votes to 5) on the matter, but the ruling did not, as I recall, cause too much of a stir in the UK at the time – the minority did, however, argue that the majority had extended Article 3 of Protocol 1 too far, and their general warnings about future problems as regards implementation have now proved prophetic. The last British government (defeated in the May 2010 election) failed to do more that set up consultation exercises on what to do to implement Hirst, and so, more than five years after the ruling, the matter has fallen on the lap of the new coalition government. For those interested, the whole political and legal background to this can be found in a very useful House of Commons’ Library publication, so what follows here is only a very brief summary.
From Strasbourg’s perspective, the UK has come under increasing pressure to implement Hirst, first by various political pronouncements from the Committee of Ministers (supervising the implementation of the judgment), and then following Greens and M.T. v United Kingdom (23 November 2010), a pilot judgment in which the Court ordered the UK to bring forward, within six months of the judgment becoming final (August 2011), appropriate legislative proposals to meet the terms of Hirst. There have been other judgments too, including Frodl v Austria (8 April 2010) and Scoppola v Italy No 3 (18 January 2011) in which the Court has reaffirmed the principle that blanket bans on the right of prisoners to vote contravenes Article 3 of Protocol 1. It is worth noting that these latter judgments, which arguably go beyond Hirst, have contributed to some confusion, in the UK at least, as to precisely what needs to be done to satisfy the requirements of Article 3 Protocol 1, beyond modifying the blanket ban on the right to vote.
From the British perspective, however, there has been little appetite for change. The British Prime Minister, David Cameron, said back in November 2010 that it would make him ‘physically ill’ to grant prisoners the right to vote (in fact, under current arrangements the following categories of prisoners do have the right to vote: remand prisoners, contempt of court prisoners and fine defaulters). Nonetheless, the government line, initially at least, was that the right to vote would be given to prisoners serving less than four years. However, there is a strong distaste for this in Parliament (in fact, the House of Commons) itself, which is how we come to the events of last week. Three senior Parliamentarians (including the former Foreign Secretary and Home Secretary, Jack Straw) tabled a motion which referred to the Hirst judgment, supported the blanket ban, sought support for both, and proposed that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers [i.e. not the courts/ the European Court of Human Rights]’. The debate (which is available here) lasted several hours and, on a free (i.e. non-party influenced) vote, went in favour of the motion by a large majority (234 to 22). Although this will not bind the government, it is clearly in a political fix as to what its next move should be. Government spokespersons have said that they will do the minimum to comply with the judgment; but this will require legislative change, and so the consent of the House of Commons, which has now forcefully demonstrated its unwillingness to change the law, the view being taken that the Hirst ruling is simply wrong.
A bigger and perhaps more troubling issue was the evidence of a level of hostility toward the Strasbourg Court amongst certain sections of British MPs. The question was raised as to whether the Court is entitled to have a say on matters such as prison voting, given some MPs’ views that it lacks constitutional legitimacy and has grown too big for its boots. Basically speaking, many British MPs insist that this is a matter for democratic, sovereign Parliaments to resolve; the Strasbourg Court, by contrast, has ruled on a number of occasions now that it is not, indicating that blanket bans of various sorts are unacceptable, and the need for a link between the crime committed and disenfranchisement. So, we have the classic constitutional dilemma: ‘who has the last word’?
Of course, this is not the first time that tensions between Parliament and the European Court have arisen in the UK, or elsewhere in Europe. Arguably, however, the prisoner voting issue has brought them into much sharper focus than in most previous incidents. Here we see an issue in which both the Court and the UK Parliament have unambiguously fixed themselves to apparently irreconcilable positions. How this matter will be resolved will be a strong test of the UK’s overall commitment to the Convention - or could it result in a blow to the authority of the Court?
Ed Bates, University of Southamton
Monday, 14 February 2011
Controversy over Prisoners' Right to Vote in UK: Guest Blog
Dear readers, it is my pleasure to announce a guest blog by Ed Bates, Senior Lecturer in Law at the University of Southampton. He recently published an extensive history of the European Court of Human Rights, on which I reported here. His guest blog addresses the current political turmoil in the United Kingdom relating to the European Courts judgments on voting rights for prisoners. Many thanks to Ed for informing us of the current debate in the UK! Here it is: