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.
If, for some reason, someone is in prison, but has completed their sentence, I see no reason why that person should not vote. If however, they are still under sentence but are given the vote, I would recognise that my vote had been devalued and feel obliged to spoil my ballot paper, since I would otherwise be equal to a convicted criminal. What is the point of punishing somebody for a crime if they remain a full member of civil society?
Ed: Comment received from Michael Pinto-Duschinsky via email —
Eirik is incorrect in stating that I have suggested “taking away the right in the UK to individual petition of the [Strasbourg] Court.”
In view of the fact that the UK’s elected legislators have, rightly or wrongly, voted by a ten to one margin on 10 February 2011 to reject the verdict of the Strasbourg Court on the matter of the prisoner franchise, we are faced with a burgeoning conflict between our Parliament and the ECtHR. This raises vital constitutional questions which go well beyond the relatively minor (and easily soluble) questions of substance involved in the prisoner franchise matter. For those who, like me, are committed at the same time to elective democracy and to the rule of law, it is important to find a solution that fully respects Parliamentary Sovereignty and at the same time accords with the UK’s national laws as well as its existing international legal commitments. A compromise solution acceptable to Strasbourg because it grants the franchise to at least some prisoners may well be rejected by the House of Commons, many of whose members are concerned primarily with the issue of jurisdiction. In any case, if the House of Commons gives way on this particular occasion, the same conflict about which institution should have the “final say” is likely to arise again in the future.
The attempted solution I outlined recently in The Guardian (http://www.guardian.co.uk/law/2012/oct/29/prisoner-votes-strasbourg-national-independence) did not entail the loss of the right of individual petition to the Strasbourg Court but rather a form of “democratic override” of verdicts of the Strasbourg Court to be used in exceptional circumstances. This suggestion is similar (albeit involving an international court) to the system in Canada (the “notwithstanding clause” in s. 33 of the Charter of Rights and Freedoms). The suggestion of “democratic override” was raised in July 2011 (but not discussed in full) by four of the eight members of the Commission on a Bill of Rights (see: http://www.justice.gov.uk/downloads/about/cbr/cbr-court-reform-chairs-letter.pdf, page 4.)
For a fuller (but older) statement of my views, see http://www.policyexchange.org.uk/publications/category/item/bringing-rights-back-home-making-human-rights-compatible-with-parliamentary-democracy-in-the-uk. The arguments in this 2011 publication titled Bringing Rights Back Home have been disputed by a September 2012 publication by Colm O’Cinneide which was written under the aegis of a steering group of the British Academy chaired by Sandy Fredman (http://www.britac.ac.uk/policy/Human-rights.cfm). I intend to reply to Colm and the steering group in the coming months. In the meantime, there will be a public event on 22 November at LSE at which two members of the steering group, Conor Gearty, Francesca Klug, will discuss similar questions with me.
Many thanks to Michael Pinto-Duschinsky for his thoughtful commentary. A prig, Evelyn Waugh once said, is someone who judges people by his own, rather than their, standards; criticism, he continued, only becomes useful when it can show people where their own principles are in conflict. While this may be exaggerated, one would scarcely like to come across a prig so let us therefore, following Waugh, look at the extent to which Pinto-Duschinksy’s principles are in harmony. The fact of the matter is that his principles, in the context of prisoners voting, seem to be in conflict when he says that his commitment is ‘at the same time to elective democracy and to the rule of law’.
When Parliament votes as it does in relation to the fundamental right to suffrage (not, incidentally, any old right but the one which allows participation in elections, the very taproot of the political system in which Pinto-Duschinsky invests so much hope) then elective democracy is undermining the rule of law. It is, however, possible to harmonise these two principles, and that was done in the elegant solution we know under the name of the Human Rights Act 1998. We do well to recall that the courts in no way arrogated to themselves the power (and obligation) which they have to rule in accordance with the ECHR. It was not the courts but Parliament that passed, in what amounted to a constitutional moment, the Human Rights Act. Only if we take as our point of departure the fact that Parliament wanted the incorporation of the ECHR into UK law is it possible to be committed ‘at the same time to elective democracy and to the rule of law’.
In addition to this comes the following point, expressed by Lord Neuberger MR last year, with which I fully agree: ‘The Strasbourg court is in the unenviable position of having to decide human rights law across over 45 countries, ranging from mature free societies to the not so free. It is important that the court ensures that there is consistency across all countries. However, it is sometimes hard for one country, with its different standards and conditions, to accept a decision which is plainly right for another country. We may think that it is inappropriate that Strasbourg pokes its nose into the votes for prisoners issues on the basis that is should be left to our Parliament to decide. However, if Strasbourg said votes for criminals was a matter for national legislatures, it may be that a dictator might see this as a green light to depriving his enemies of the vote by trumping up charges to bring against them. It may be thought to be a small price to pay for a civilised Europe that we sometimes have to adapt our laws a little’: Lord Neuberger MR, ‘Who are the masters now?’ http://www.judiciary.gov.uk/media/speeches/2011/whos-the-master-now
(As to whether I misunderstood Pinto-Duschinsky’s suggestion of a UK ‘withdrawal from the jurisdiction of the Strasbourg judges’ when I thought that that would in effect mean a loss of the right to individual petition, I am tempted to heed Benjamin Disraeli’s famous saw: ‘Never apologise, never explain’, if for no other reason than the fact that Pinto-Duschinsky on an earlier occasion had mooted this suggestion: