If ‘suffrage is the pivotal right’, then it is only fitting that the issue of prisoners’ voting rights has become the turning point of the UK government’s approach to the European Convention on Human Rights (ECHR).
The last time a Strasbourg judgment provoked such a sharp response by the UK government was probably the 1995 Grand Chamber ruling in the Murder on the Rock case. Downing Street then responded by declaring that the ruling defied common sense and that the best response might be to leave the Convention altogether. Wiser counsels prevailed; the UK did not quit the ECHR. And it will not this time either.
It has until 22 November 2012 to respond to the rulings by the European Court of Human Rights on the rights of prisoners to participate in free elections. Attorney General Dominic Grieve said recently that defying the Court on this issue was not an option. Soon thereafter, however, Prime Minister David Cameron made plain that he would not let prisoners vote on his watch. More prisoners are meanwhile filing suits.
This imbroglio is played out against the back-drop of a deferential Court which seems to have gone to great lengths to accommodate the British position. In Scoppola, the Grand Chamber deferred so far to the British position as to prompt one commentator to state that the ruling ‘more or less gutted’ Hirst (ed’s note: see our coverage on Scoppola here). Scoppola makes it clear that though a blanket ban on prisoners’ voting is disproportionate, it is not necessary to have individual judicial case-by-case determination. As Sir Nicholas Bratza, the outgoing President of the Court, explains in a recent article, lawmakers have ample room to legislate. Judge Bratza describes it as having been ‘frustrating and disappointing to see that, largely because of a single judgment concerning the right to vote of some categories of convicted prisoners, the court has become a sort of hate figure, not just in the popular press, but also in the soundbites of politicians, some of them senior, and, even more disturbingly, judges—again some of them senior’.
The latest contribution of Michael Pinto-Duschinsky, former member of the UK Commission on a Bill of Rights, has been to suggest
taking away the right in the UK to individual petition of the Court giving national parliaments the ability to override Strasbourg decisions. This suggestion, together with that of the Prime Minister, may seem like little more than what psychoanalysts call passages à l’acte — acts of precipitate violence which betray admissions of impotence and loss of direction. In fact, the government may relish this opportunity to shore up its base at the cost of European institutions — and of those whose rights are being breached.
What will happen if the UK fails to make amends by 22 November? Clearly, all member States of the Council of Europe must comply with the Convention; article 46 of the ECHR requires the States ‘to abide by the final judgment of the Court in any case to which they are parties’. Joshua Rozenberg has suggested that the only honourable thing to do, if abiding by the Court’s ruling is not on the cards, would be to leave the Council of Europe. It would certainly be surprising if the UK were to follow Greece under the regime of the colonels in doing so. At all events it is easier to predict the political, rather than the legal consequences if the UK were not to comply by the deadline.
First, non-compliance would spell ‘shame’ — a word often cited in the Houses of Parliament. It would undoubtedly meet with criticism from Germany, France, Italy and many others, at the receiving end of difficult adverse judgments from the Court, which, however, they find ways to comply with regularly. Although Germany, for example, still smarts from adverse judgments on preventive detention, its response has been to overhaul its system to comply with the ECHR. Secondly, non-compliance will have what might be called ‘Kantian implications’; other States will be taking notes and might follow suit. This could give a novel, and wholly unwanted, twist to Lord Bingham’s Miltonian exhortations to UK politicians in the 1990s: ‘Let not England forget her precedence of teaching nations how to live’.
Article 3, Protocol 1 of the ECHR provides that ‘the High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. Will the circumscribed upholding by the Court of the proposition, logical and wholly unobjectionable to many, that this entails a prima facie right for everyone to vote be the end of the Convention as far as the UK is concerned? Surely not. But the pivotal issue of prisoners’ voting will just as likely continue to be, for the current government, the gift that keeps on giving.
Eirik Bjorge is a DPhil Candidate at Corpus Christi College, University of Oxford.
Correction: a previous version of this post indicated that in a recent article Michael Pinto-Duschinsky has suggested ‘taking away the right in the UK to individual petition of the Court’. Instead, he has argued that national parliaments should be allowed to override Strasbourg decisions. The full version of this article is available here: http://www.guardian.co.