All bets are off for prisoner votes
16 March 2011
As well as blaming bloggers for media frenzies in yesterday’s Law in Action interview, the Attorney General also made some interesting comments on the UK’s bold new tactic on prisoner votes (see my post on Monday), which is effectively to try to appeal an unappealable ruling.
He said (from 19:20) that the UK “takes its responsibility seriously” and that it would be seeking to reform the court when it takes on the chairmanship later this year. “In any political process” he reminded Rozenberg, “the movement of the tectonic plates is always going to be a bit rough” (please note that the programme was recorded before the Japanese earthquakes). He would not say, however, whether the government would do anything to comply with the ruling in Hirst No. 2.
The government is now arguing that the original European Court of Human Rights ruling was based on the assumption that Parliament had not debated the issue. And, since it now has been done so and backed a non-binding motion opposing giving prisoners the vote, the court should revisit its decision.
Rozenberg challenged Grieve that the UK could not just play for time on the issue. Grieve responded that the if the”will of Parliament is quite clear the government cannot overbear it“. Rozenberg responded that the government can hardly gauge the will of Parliament from an unwhipped debate (that is, one in which the government did not recommend to its ministers which way to vote).
He did say that even if the UK were to withdraw from the Convention in future, this would not absolve the UK of its previous obligations.
As I said earlier this week, the UK’s tactic is certainly bold, and one which the European court is unlikely to appreciate. But since we are in uncharted waters, it is very difficult to predict what will happen next.
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How about a different proposition: the ECHR has overstepped its authority and moved clearly into a political arena for which it has no authority. The House of Commons has always retained its sovereignty as a legal matter and in this instance is morally and politically entitled to exercise that sovereignty. Any wider consequences for the relationship between the UK and the ECHR are no doubt fascinating, but of no consequence as a matter of UK constitutional law.
Rozenberg responded that the government can hardly gauge the will of Parliament from an unwhipped debate (that is, one in which the government did not recommend to its ministers which way to vote).”
A free vote is suely the only way of gauging the will of Parliament.
There is a requirement that not only must a Member State fully comply with the ECtHR judgment, but also that the Member State must do so speedily. In over 5 years the UK has failed in both of these respects, therefore the evidence is clear that the UK has not taken its responsibilities seriously.
As Adam points out, the UK is seeking to appeal against an unappealable decision. Again, given this approach, it is difficult to see how anyone in Government can truthfully claim that the UK is taking its responsibilities seriously. From my perspective, its taking the urine.
Perhaps, I might suggest that the UK starts taking me seriously?
For example, I did warn the Political and Constitutional Reform Committee that the motion as it stood was unlawful. It claimed that the Court held that there had been no debate. A reading of Hirst v UK (No2) proves that this was not held by the Court. Therefore, those responsible for drafting the motion are guilty of contempt of Parliament by misleading Parliament. It also means that the thinking ‘If we go through the sham of conducting a debate and reject the motion then that’s the end of the matter” is flawed.
I wonder what are the legal consequences of altering the text of the motion and presenting a different version to the Committee of Ministers and Grand Chamber? Someone has realised that my legal advice was legally right and is now belatedly trying to correct the issue. There is a saying ‘When in a hole, stop digging’. To present one version in the House of Commons and another version in Strasbourg may have escaped some people’s attention, but one of my strengths is paying attention to detail and this one leapt straight out at me. It is one thing to mislead Parliament and quite another to attempt to mislead Strasbourg.
“Rozenberg responded that the government can hardly gauge the will of Parliament from an unwhipped debate (that is, one in which the government did not recommend to its ministers which way to vote).”
So, on Rozenberg’s theory, the will of Parliament can only be arrived at when MPs are told what they should vote? Surely the point is that the will of Parliament is behind the ban because they didn’t have a whipped vote!
Further to my comment above. It is interesting to look at the British government’s request for Greens and MT to be referred. They argue the following:
“Since the Greens and MT judgment effectively confirms the Hirst judgment, the letter of referral requests that the Grand Chamber reconsider Hirst on the basis that:
§ the margin of appreciation should be broader than the Court stated – and should not exclude a ban on prisoners voting in the UK context;
§ the UK sentencing regime makes imprisonment a last resort and allows judges to take account of all the circumstances of the offender in determining the term served – so a custodial sentence meets a level of seriousness sufficient to warrant disenfranchisement, and is applied after consideration of the individual case;
§ the recent debates in Parliament demonstrate the strong views of democratically elected representatives, and the fact that modern day opinion is supportive of the ban;
§ since Hirst (and Greens and MT), the domestic courts have opined on the matter (Chester) restating that there is a range of reasonable views on the subject of prisoners voting, and that many take the view that a bar where a custodial sentence is imposed should properly be within the margin of appreciation of the UK;
§ Member States take many different approaches, which reinforces the notion of a wide margin of appreciation; and disenfranchisement in the UK ends when detention ends, which is a matter for the judge – so again, the length of disenfranchisement is based on the judicial consideration of the individual’s circumstances.”
One could make several observations on the above and, of course, they do not mention any of the contrary arguments.
The government is clearly hoping to persuade the European Court to go against Hirst 2. This point about absence of a Parliamentary debate was hardly the basis of Hirst 2 but is a “straw” left in the wind by the court and the British government is clutching at it.
Had the absence of a parliamentary debate been the crux of the matter it would have been extremely easy for the UK to have rectified that back in 2005/6. Merely hold the debate, secure the vote and retain the ban on voting.
The government are entirely within their rights to request that the Greens and MT case be referred to the Grand Chamber – Article 43 of the Convention. However, as I read it, the application has to pass a panel of five judges- Art. 43(2):
“A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a European Convention on Human Rights serious issue of general importance.”