Why have a European Court of Human Rights? – Dr Ed Bates

At last week’s Inner Temple hall event, ‘Strasbourg and the UK: Dialogue or Conflict’, Lord Justice Laws asked some provocative questions: 

why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?

When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.

The question I posed should have had a qualification added to it. What is the proper role and function of the Strasbourg Court, given that it is an international court? The point here is that the Court is, obviously, not a domestic one. This may imply that there are certain limitations on its authority given the extent to which its rulings may have an intrusive effect on the domestic legal order, with its own system of courts.

Indeed, the Court has frequently recognized these limitations via its application of the principle of subsidiarity and the margin of appreciation doctrine. Similarly, it has shown a considerable reluctance to push forward the boundaries of ECHR law unless the step forward is fully backed by a common European standard on the matter before it. But in this connection, let us turn to the case of Hirst v United Kingdom No2 (the prisoner voting case).

Hirst throws up the question I am asking regarding Strasbourg’s role and proper function. Read the majority and the separate, concurring opinions and one is left with the strong impression that these judges condemned the blanket ban on prisoner voting because the view had been taken domestically that withdrawal of the right to vote was part and parcel of a prisoner’s punishment. The Court’s approach, by contrast, was to the effect that in modern Europe a person should not die a civic death just because he enters prison, prison being about both punishment and rehabilitation, and the return of the right to vote being part of a prisoner’s transition back into society.

Personally I would welcome this position, and, it may be noted, in taking their stance the Strasbourg Judges were able to cite supporting jurisprudence from the Canadian Supreme Court and the Constitutional Court of South Africa. But was it appropriate for the Strasbourg Court, not a domestic Supreme Court but an international treaty-based court, to adopt the stance just noted?

Read the dissenting judgments in Hirst and one senses that the five dissenting judges had this question firmly in mind. They indicated their general sympathy with the argument that some prisoners should be given the right to vote (or, at least, they opposed blanket disenfranchisement). However, in effect they went on to say that there were limitations on the authority of the Court and that the majority had exceeded them. They pointed to the absence of a strongly developed, common European approach on whether prisoners should keep the vote, and they foretold that the Hirst judgment would ‘create legislative problems’ not only for the United Kingdom, but for other States too.

The dissenters warned the majority that ‘the Court is not a legislator and should be careful not to assume legislative functions’. As Judge Costa (today President of the Court) put it, ‘one must avoid confusing the ideal to be attained and which I support – which is to make every effort to bring the isolation of convicted prisoners to an end, even when they have been convicted of the most serious crimes, and to prepare for their reintegration into society and citizenship – and the reality of Hirst (no. 2)’. That reality was one in which the State should benefit from a wide margin of appreciation; in short, it was not for the Court as an international court to find a violation.

Of course, the majority view prevailed. The Court did find a violation and readers of this blog will be very familiar with the story that has followed as regards the lack of enforcement of the Hirst judgment to date. Here we may simply note that the motion debated, and carried by a very large majority, in the House of Commons last February was that ‘legislative decisions of this nature should be a matter for democratically elected lawmakers’.

This might suggest that the debate was about the role of courts generally, so bringing us back to the questions raised by Laws LJ and the response from Lord Pannick (last Tuesday) that the courts have an important role to play when the political process fails to protect vulnerable minorities. However, looking back the comments made by certain MPs in the February debate it seems that their frustration was directed less with the role of the domestic courts (the High Court had said there was no violation in Hirst), and much more to do with the role of the Strasbourg Court sitting above the domestic legal regime.

If the proper role and function of the Strasbourg Judges is, from time to time, to act like a domestic Supreme Court, emulating to some extent the example set by the Canadian and South Africa superior courts, by pushing forward the boundaries of human rights law, then we should congratulate the majority in Hirst. They have fulfilled their mandate, unpopular though they may be for doing so.

If, on the other hand, this is not the Court’s role – because, as the minority in Hirst would have said, ‘we are international Judges, which implies a limited role on our part, because the 47 Convention States each have their own superior courts and Parliaments’ – then we could legitimately criticise the Court for exceeding its jurisdiction.

Which view is correct? You will not find the answer in the Convention and I am not sure one exists, except to say that the reality is that the Court has evolved over the decades into an institution with the capacity to act like (and one has to emphasise the word ‘like’) a Supreme Court for Europe. The extent to which it does in any one case will depend on the approach of the Judges.

The fact is that the Court is the court of last jurisdiction on Convention human rights matters and so in practice can have ‘the last word’ in a particular case, with the States being bound at international law to accept its rulings.

It is in this context, of course, that the Court has come under the spotlight recently. There have been broad attacks on its constitutional legitimacy to act like a European Supreme Court, it has been suggested that there is a need for a democratic override of the Court (personally I think this is unnecessary), and there have also been appeals for the Judges to pay greater attention to the principle of subsidiarity. In reality, of course, these are attempts to clip the wings of the Court and, presumably, help prevent cases like Hirst from occurring in the future.

Dr Ed Bates is Senior Lecturer in Law, University of Southampton and author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.

26 thoughts on “Why have a European Court of Human Rights? – Dr Ed Bates

  1. Voting rights are covered by the ECHR and are hence seen as a human right, as distinct from a civil right. I accept that civil rights are a matter for domestic law and that the UK parliament is sovereign in such matters.

    Human rights, however, are universal and must therefore transcend national jurisdictions. It is right and proper therefore for an international court to rule on human rights matters even if a nation’s sovereignty is felt to have been impugned.

    Perhaps the real issue with voting rights is whether the ability to participate in a nation’s democratic processes is a civil right or a human right. If the UK government holds it is the former then perhaps it should seek to eliminate clauses relating to voting from the ECHR. This would seem a more proportionate response than abolition of the HRA or withdrawal from the Convention. By ignoring the Hirst judgement the UK is breaching international law. This surely can not be the correct response of a nation that presents itself as a beacon, with some justification, to other less civilised nations.

    • Just as a postscript, I add the following:

      ARTICLE 3

      “The High Contracting Parties undertake to 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”.

      This is what the ECHR says. There is no qualifying (or get-out) clause. There is no clause that excludes categories of people, e.g. Jews, Gypsies, Homosexuals, etc., So from where does the authority to exclude prisoners from participating in elections come?

      I do recall from reading about the Nuremburg Trials that the accused objected to being judged by an International Tribunal. They believed the judges should have been German – a position not very different to the current objection that the ECtHR has breached UK sovereignty!

  2. Why is the Government so worried about allowing prisoners to vote? Surely the object of the criminal justice system is to rehabilitate. If you make people pariahs and outcasts you create an underbelly of social misfits who hate society.

    Giving prisoners the right to vote makes them citizens and not outlaws. Instead of trying to prevent prisoners from voting the Government could have schemes in prisons to teach people about social responsibility and change through political process

  3. If the question is “Why a European Court at all?”, we need to go back to first principles – as, indeed, the multi-national drafters of the Convention had to do, in those traumatised but idealistic post-war years (a story brilliantly told, incidentally, in Ed Bates’ recent monograph on the Convention’s history). Human rights – as the Universal Declaration spells out, and as their very name would suggest – are universal. They are not “British”, any more than they are “Swedish” or “Russian”. Yet that pernicious nationalistic assumption, or rather the need to pander to it, seems to have infected all parts of the current British debate (it’s unlawyerly, but the word “navel-gazing” comes to mind!)

    If rights are universal, then in an ideal world the instances charged with enforcing them should also be universal – though in practice Europe is the only part of the planet, because of its uniquely grim history, that evolved a mechanism to give real teeth to enforcing a large slice of the Universal Declaration. Contrary to the prevailing view, I regard that as an astonishing achievement – and one that British lawyers, who shaped and refined the Convention, can take much credit for. Yes, this has meant a pooling of sovereignty – let us not be coy about declaring that – but, as with any pooling, there is a corresponding gain in exchange for the loss. In crude tabloid terms, “they” get to stick their noses into “our” laws, but we also get to stick ours into theirs. A better way of putting this – if we really must use a national vocabulary – is that, through the Strasbourg Court, British values of justice have been able to influence for the better the lives of millions of less blessed fellow-Europeans far beyond these shores.

    Does the United Kingdom have a moral obligation, by supporting the Court, to help Bulgarians, or Ukrainians, or Turks to have (or at least aspire to) the same level of rights protection as we are lucky enough to have? Are those Chechens dragged from their beds at night by masked men, who view the European Court of Human Rights as their “last hope of justice”, really our business? In the view of Mr Pinto-Duschinsky and his fellow skeptics who wish to withdraw from the ECHR, the answer would seem to be no: British laws for Brits, and let us pull up the drawbridge at Calais. Yet that moral obligation towards a wider community – a core attribute of human rights law, more than any other branch of law – is something that Sir Winston Churchill, for one, profoundly understood when he put his great prestige squarely behind the European idea, and the Convention and Court in particular. Characteristically, he also saw that this was in Britain’s interest: in 1939 the horrors of war did not stop at Calais, and in 2011 it is still in Britain’s interest to have stable regimes in the neighbourhood who protect at least their citizens’ basic rights.

    Whatever we might think of the prisoner voting ruling, there are many other rulings – less frequently evoked in the media – where the Court or its jurisprudence have nudged British law and practice in progressive directions that are now widely accepted. For me, at least, our participation in this shared Convention has been broadly positive – to return to the national discourse, we have benefited from the influence of the “outsiders”. But what about our influence on them? The UK is privileged to have a robust and independent judiciary and a deeply entrenched human rights culture. Not all of Europe is as lucky. I regard the European Court as a great way to spread some of that luck around.

  4. As I did not attend the Inner Temple hall event I have no idea whether Laws LJ, declared his conflict of interest. I suspect he did not. What my case exposes is not only corrupt politicians but also corrupt judges. I refer to the Chester case at the CofA covered in this post and added my criticisms in the comments section http://ukhumanrightsblog.com/2010/12/17/court-of-appeal-rejects-prisoner-vote-plea-government-announces-plans/.

    Ed Bates asks a silly question which deserves a silly response, but I won’t lower myself to his level. The role and purpose of the ECtHR is clearly explained on the Court’s website and also explained on the Council of Europe’s website. I suggest that Ed Bates asks his easy, wrong question because it is easier than him asking the tough, right question. That is, ‘Why hasn’t the UK fully complied with Hirst No2?’. The fact that the UK is dodging the question and the fact that the media are not asking the question should be ground enough for Ed Bates to ask the question and not let up until he gets an answer. This week I commenced proceedings in Hull County Court in an attempt to force the UK to answer the question.

    Ed Bates is wrong to claim that there is disagreement over whether convicted prisoners should be able to vote. The disagreement was settled in my favour in Hirst No2. The disagreement is whether the UK should fully comply with the judgment.

    Of course there are limitations upon the Court’s authority and jurisdiction. However, the UK has signed up to accept both the Court’s authority and jurisdiction. The UK signed up to the Court’s Grand Chamber judgment is final. The UK must accept this position or withdraw from the Council of Europe and the EU. Hirst No2 will remain even if the UK withdraws or is expelled. Ed Bates suggestion is wrong, what lies at the heart of this is my desire to reform Parliament. There is raging a battle of wills, my will for Parliamentary reform and Parliament’s lack of will for reform:

    “There are supposed to be ‘no votes in prisons’ and no political prizes for doing something about them. Any politician brave enough either to tell the truth about them or grasp the nettle and try to change the way they are run is likely, so it is believed, to run into difficulties with public opinion” (Vivien Stern, Bricks of Shame – Britain’s Prisons, Pelican 1989, p.133).

    Ed Bates conveniently ignores that my case is one of the Individual v the State. That is, the Executive, Parliament and Judiciary. Baroness Stern was referring to there being no votes in prisons for MPs. She went on to explain that actually public opinion is not against prison reform. So, the MPs fears are groundless. I turned around Baroness Stern’s quote to fit my Prison Law Inside Out school of thought. That is, ‘Why are there no votes in prison for prisoners?’. I also turned around my life from a law breaker to a law-maker. That is, I reformed. If I can reform then why cannot Parliament and the prison system? MPs and the media keep trying to hide behind public opinion, but the Court excluded public opinion as being a justification to deny convicted prisoners the franchise. Therefore, the 3 arms of the State are the guilty parties in Hirst No2 and they are required to remedy the breach of human rights disclosed in my case. It is not for the losing guilty parties in a case to question the authority and jurisdiction of the Court. If this was the case, the innocent would suffer.

    Ed Bates questions whether is was appropriate for the Court to take the stance it did. Of course it was appropriate. Parliament and the domestic courts abdicated responsibility. Parliament did not debate the issue, and the High Court deferred to Parliament. The Court grasped the nettle. Now the UK is complaining about getting stung having been whipped with it!

    Ed Bates fails to point out that the motion in the HoC was unlawful.

    Ed Bates also fails to point out that the High Court not only abdicated responsibility but that its decision erred in law.

    Ed Bates is wrong to suggest that the answer to his question is not within the Convention. Not only is it within the Convention, but it is also within other documents relating to the Council of Europe. Whilst minority opinions maybe interesting reading, what really counts are the majority opinions. In my view, the Court is the Supreme Court of the United States of Europe.

    In my view, the UK has failed to take into account the views I hold on the issue. From a Prison Law Inside Out perspective I formed the conclusion that prisoners’ rights would fare better under European law as opposed to English law. Therefore, my case and legal arguments were designed to appeal to those judges more familar with European law. I succeeded. I was conscious of the Treasury Solicitor’s booklet Judge over your shoulder. I employed the same tactic with prison governors during adjudications, my case was not for their benefit but instead for those entrusted with guarding the guards.

    When I studied law I rejected the traditional black letter of the law teaching in favour of law in context or ‘living law’, and took in European law. On the other hand, Lord Falconer who read law at Queen’s College Cambridge was not schooled in European law. Therefore, his education was inferior to mine from the “University of Crime”. English law recognises the doctrine of the supremacy of Parliament, whereas under European law the sovereignty of the people is supreme. Under English law we have a fusion of powers whereas under European law there is the separation of powers. I played on these differences successfully. I embrace Europe whereas the UK tries to be both in and out of Europe at the same time. The UK says one thing in Europe and another thing in the UK. The media and MPs fail to tell the truth to the UK public. There is also a lack of understanding of the European law principles of the margin of appreciation and subsidiarity. Even the Court’s judgments must be read differently because they do not follow the English law judgments with ratios and obiters, rather within them are European principles.

    I look forward to Ed Bates response.

    • Dear John,

      I can see we both enjoy the right to freedom of expression.

      I was trying to make a broader point about how controversial it is to have the law reform in question instigated by a European Court. There were arguments both ways as to whether it was approriate for the Court to take this step, as the dissenting judges made clear. There is a debate to be had about the Court’s proper role and function, I believe. In my view it serves a very valuable role.

      Whether one is for or against the right of prisoners to vote is a different matter (I think the dissenters were in favour too, as I say). As I say above, ‘Personally I would welcome this position…’, i.e. the reform promised by your case (Hirst v UK No2). To be clear, I think that the judgment should be enforced, i.e. accepted by the UK. In the final analysis I think it will.

      Ed

      • Hi Ed

        I am in favour of freedom of expression. But, I question the media’s reporting of my case. I would like to see the Court or any court make a ruling that misreporting is a contempt of court in my case.

        I saw the broader point. Actually, I claim credit for the instigation of the reform. I say this because the Court is reactive whereas I am proactive. Not since Guy Fawkes has someone launched such an attack upon Parliament, and I like to think it’s caused a constitutional crisis not seen since Charles the First lost his head.

        I don’t accept that there were arguments both ways, the majority prevails but the system allows for dissenters. Some are slower to embrace reform than others. I do think that the dissenting opinions were right to state that the actual margin of appreciation in this case is very narrow and not wide. I have seen it on the Council of Europe website that the margin of appreciation is not so much giving Member States discretion as to how to implement decisions but instead is a face saver.

        Whatever reforms are needed in relation to the Court can be resolved with the Interlaken Conference and Izmir Conference. It does not absolve the UK of its responsibility to abide by its international law obligations. The UK is engaged in creating a smokescreen. As with the Court’s judgments the UK is taking a pick and mix approach to these Conferences. They also require reforms by Member States. My judgment refers to Assanidze v. Georgia [GC], no. 71503/01, and where there is a systemic failure in a Member State. Greens and MT v UK was a pilot judgment to help the UK deal with its systemic failure. Where you have the 3 arms of the State ignoring a judgment and human rights, democracy and rule of law go by the way side is a sorry state to be in. The UK sought to appeal against this but lost. The UK is in denial that it lost my case. They had no and still have no plan B. Their lawyers said, “We didn’t expect to lose”. Get over it!

        We are dealing with justice delayed is justice denied. There is no justification for this delay. It is a simple case requiring a simple amendment of s.3 of ROPA 1983. The government claims it is a difficult case with complex issues. The truth is what is difficult is trying to find a loophole in a watertight case. If the UK sticks to the judgment it is an easy path, the straight and narrow. Any deviation is a minefield. I know because I laid the mines.

        When Labour was in office they would not speak to me because of what the Sun and Mail might say. The Coalition’s excuse is that I ridicule them on my blog.

        If my case goes to the CJEU if the UK thinks its feeling pain now…

  5. A fascinating article, and equally gripping comments. I would tend to agree with a lot that John Hirst says here. I happen to believe, as an individual, that prisoners should be given the vote; but even if I did not, I would believe that where a Court decides that they should, it is incumbent on a Government to enact that. It makes me deeply uncomfortable to have a Government who proclaim that its citizens should follow the law or face the consequences, but consider itself to have a ‘pick and mix’ option as to when they will follow decisions of the Court.

    But there is a real stymie here – the European Court can never force the UK Parliament to pass an Act allowing prisoners the vote, and it can never happen without such an Act. All it can do is continually impose penalities and compensation awards on those who have been drepived of the right that the European Court has said they should have. The UK Government has bullishly said that they will make the payfoffs rather than enact the legislation, and we end up in a position where the Court’s authority is not properly recognised and respected, the prisoners lack the right the Court has said they are entitled to, the taxpayers pay compensation, and the UK Government have to posture in the media about ‘europe’ and ‘unelected judges’ and critique human rights as if it were something to be despised rather than celebrated.

    An interesting angle would be if the Government decided that they wished to have a referendum on the issue, and to abide by the decision of the public on this issue. To what extent would the Court (presumably dealing with a Hirst no 3), be in a position to expect the UK Government to do more?

    I suspect that a decision from the European Court to override a majority decision of a uk referendum would provoke a huge crisis of confidence, whipped up by the tabloids, in Europe as a whole. * I am assuming for the interests of debate that the result of the referendum, would be against allowing prisoners the vote – it might well not be. (And of course, if prisoners don’t get the right to vote in the referendum, given Hirst no 2, would it be legitimate anyway)

    Equally, it would be interesting if a collective of prisoners eventually challenged the outcome of a general election and legitimacy to govern on the basis that not everyone who was entitled to vote in european law got the opportunity.

    I wish John luck in his campaign, both because I agree with his cause, but more importantly because I believe that nobody should be above the law, including UK Parliaments. If they had intended to retain the doctrine of Parliamentary supremacy, they should have been a damn sight more careful when negotiating the basis on which the UK would be bound by European law.

    • Challenging the result of an entire general election would almost certainly fail. However, it might not fail if the inmates of a prison located in a parliamentary constituency were to lodge an objection to the result of an MP being elected where they could show that their combined votes could have changed the outcome of the result. This could only take place in a constituency area where the result between the winner and second placed candidate was sufficiently close enough to allow the prisoners votes to be decisive in affecting the outcome. This might be an area which John Hirst could consider for research between now and the next general election. It could also be considered for any by-elections between now and the general election. I think the Courts might be receptive on this basis?

    • Andrew

      Thanks for your support.

      A weakness with the ECtHR is its lack of effective enforcement of its judgments. Under the Convention supervision is supposed to be monitoed by the Committee of Ministers. When the Court was set up it was envisaged that a softly softly approach and diplomatic pressure would suffice to get compliance. However, this video explains why there is a problem with this approach. http://www.youtube.com/watch?v=TmvaP3pyM0g The Council of Europe is aware of this challenge to its and the Court’s authority and this is why it is intended to use the powers of the EU to force compliance. The sanctions for non compliance are also far stricter. Time is running out for the UK to do the right thing or pull out of Europe and become a rogue or pariah State.

      The referendum is too late because the Court has already excluded public opinion, and the UK’s proposals must meet the requirement demanded by the Court and Committee of Ministers. Hirst No2 remains open until the UK satisfies the Court it has fully complied with the judgment. Your second angle is already underway to the CJEU.

      As you say, they did not see it coming. I read the government’s advice on the implications of the HRA 1998, and they had failed to take into account any possible challenge by prisoners under the Act. I suspect it was because of the policy that prisoners are less eligible. But under human rights law they have the same status, save for loss of liberty, as any other human being. My first challenge never got to the ECtHR, and was decided in my favour in the High Court. It related to prisoners right of access to the media under Article 10. But within the case I inserted another point claiming the right for prisoners to form an association under Article 11. The judgment was so sound by Elias J, that the government decided not to appeal. There wasn’t the internet when we signed up to the Convention and sacrificed some Parliamentary sovereignty. The UK could and did lie to the media and public and they still do. But now they are getting caught out lying.

  6. If human rights stayed the same over time, I would be more than happy to allow judges, rather than parliament, to determine them, through the interpretation of the ECHR.

    But our view of human rights changes over time – and rightly so. The right, for example, to a family life plainly did not include families built around a same-sex relationship when the Convention was signed in 1951, for the obvious reason that male homosexuality was still illegal at that time (and for several years thereafter).

    Who, then, should we trust the most to decide when to move the boundaries and by how much? If it is a choice between (1) the elected legislature (2) the most senior judges in the land and (3) those appointed to the ECtHR, I think my preference is (1), (2) and (3) in that order. I would dearly love it to be in reverse order. But if, as Ed Bates points out in his excellent article above, a majority of the ECtHR is prone to see itself in the role of legislator, I cannot support them in that role.

    • Simon

      The ECtHR does not see itself as a legislator.Rather, it enforces the Council of Europe policy of harmonisation. For example, Sweden gave prisoners the vote in 1968. The UK has had plenty of time to reform but our legislature is so corrupt it tried to get out of its obligations in Europe. Parliament has passed the HRA but as Alex Bailin QC has observed in relation to my case the Act is toothless. Parliament decided to sacrifice our human rights to retain supremacy. A problem with this is that in a true democracy supremacy rests with the people and not the legislature. Parliament is claiming power which should belong to the public for private purpose. But for the ECtHR we would have no protection.

      • ‘…A problem with this is that in a true democracy supremacy rests with the people and not the legislature…’.

        Well, I don’t think this would be much help to you either as I am pretty sure that a people’s referendum on the question as to whether prisoners should be given the vote – the result would be a resounding NO.

  7. One benefit which people resident in the UK acquired through membership of the ECHR was that their status changed from one of being subjects of the UK Crown to one in which we all became Citizens of Europe. This has been further reinforced through membership of the EU. If we abandon membership of the ECHR we will lose our status as citizens and return back to our former status of being subjects. I do not believe that anyone wants that.
    There is, clearly, a democratic deficit at the heart of the ECHR and simply leaving development to European judges does not make sense, particularly as their changes to the body of case law takes a long time to implement and this will always mean that they lag behind the rest of European society.
    Either there should be a more active role for the European Council in developing European Convention law or this role should be handed over to the European Parliament as part of their role in future, subject to enhanced democratic accountability of that body.
    The problem is not the institution but the process of law making.

    • John

      In Europe they are citizens in this country we are still subjects of the Queen. However, because she is just a figurehead we are the subjects of the Executive. For example, when I was in prison we had the right to petition the Queen but it did not actually go to her it went to a civil servant. It might even be argued that since Charles the First lost his head we have been the subjects of Parliament. If we were citizens we would be up in arms that we get less rights than citizens in Europe.

      The UK lags at least 60 years behind Europe.

      The Parliamentary Assembly of the Council of Europe (PACE) has already started taking more responsibility for enforcing the Court’s judgments.

  8. The European Court did not decide that ALL prisoners must have a vote. They condemned the blanket policy adopted by UK.

    If, a few days before an election, the Magistrates send D to jail for (say) 3 months for theft he cannot vote in that election. If, instead, they gave him 150 hours unpaid work then he may vote. The decision between prison or community sentence depends on factors such as the seriousness of the offence, D’s record etc. No court would decide to send D to jail in order to prevent him voting – indeed, such a decision would actually be unalwful.

    In short, the whole situation is irrational and requires urgent reform. Loss of voting rights – if it has to be part of the law at all – should be linked to electoral offences; misconduct in public office and the like. However, I think that it would be preferable not to go down such a road with all the attendant difficulties of defining the exceptions.

    At a time when at least one part of government is seeking to emphasize rehabilitation, it makes no sense for others to be working against that aim by denying the vote.

    We await the outcome of the UK government’s intervention in Scoppola with interest.

    • Obiter J

      As you know, I disagree with your interpretation of my case. Rather, I agree with the ECtHR’s interpretation of it as stated in Frodl and this case, like my own, is final. “The Contracting parties undertake to abide by the final judgments of the European Court of Human Rights (“the Court”) in the cases to which they are parties (Article 46, paragraph 1)”. http://www.coe.int/t/dghl/monitoring/execution/Presentation/About_en.asp The Interlaken Declaration has gone even further “taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system”. http://www.londonmet.ac.uk/londonmet/fms/MRSite/Research/HRSJ/EHRAC/Advocacy/Interlaken%20declaration%2019_2_10.doc

      Your third paragraph is in agreement with the principles laid down in Frodl.

      I was disappointed given the GC refusal to hear appeals in Frodl and Greens and MT v UK that it decided to hear an appeal in Scoppola. A member of the HofL suggested that Scoppla might be a way of delaying fully complying with Hirst No2 and Greens. As I understand it, the Registrar has given the UK a further 6 months delay in complying with Greens. However, no such stay of execution has been granted in relation to Hirst No2. So, the UK is still under the obligation to abide by the judgment in my case. If the ECtHR allows the UK to appeal against Hirst No2 via Scoppola, the Court would lose legitimacy. The UK has already tried this via Greens and failed. It beggars belief that the GC is even allowing the UK to play this game. Since Magna Carta we have had the principle of justice delayed is justice denied. Adam has questioned the unnecessary delay in this post: http://ukhumanrightsblog.com/2011/09/20/prisoner-votes-and-the-democratic-deficit/.

      The Council of Europe boasts that it has: A unique and effective mechanism http://www.coe.int/t/dghl/monitoring/execution/Presentation/About_en.asp. Unique it maybe, my case shows it does not live up to its claim of being an effective mechanism. Neither the UK nor the Committee of Ministers has fulfilled their respective obligations. This leaves convicted prisoners in the UK without an effective remedy for a breach of their human right to vote.

      I have been unable to discover the means to challenge the failing by the CoM within the Council of Europe system. This means that the CoM cannot be held to account. I am against the CoM being unaccountable. Surely, there is an argument for reform here? Also, I would question the Court’s Registrar for condemning unnecessary delay and then allowing more unnecessary dely. It strikes me as being absurd or at least irrational or unreasonable. I feel that there should be a requirement to provide justification and failing this to reverse the decision in favour of the UK. I suspect that there are some behind the scenes politics going on here and if so the system lacks transparency.

      There are challenges which can be launched against the UK. One such that I am considering is this approach: Reopening of Judicial proceedings http://www.coe.int/t/dghl/monitoring/execution/Documents//Reopening_en.asp. It may provide the UK Supreme Court with the opportunity to provide an effective remedy at a national level.

  9. John (Hirst): As I understand it, you are right in assessing that our actual system of government is based on total parliamentary sovereignty. The group or party with most MPs gets to determine the governmental and legislative programme, and they – in turn – come under the control of a small elite group who take on the roles of government ministers, with one minister being primus inter pares who becomes Prime Minister, subject to continuing Cabinet support.
    Our system is at least several centuries old in its basics – and it shows.
    I do think that UK membership of the EU has introduced a new concept of citizenship – as opposed to subjecthood – for UK residents. This is a fairly new situation and it may be that it will need to be tested through the EU courts system, as opposed to the ECHR courts system – but I do not know enough about the relevant competences of each of the court systems. It may yet be fruitful for someone to investigate these areas of legal competences?

  10. I began my comment (above) by saying:

    “The European Court did not decide that ALL prisoners must have a vote. They condemned the blanket policy adopted by UK. ”

    In a nutshell that is precisely the position reached by Hirst No.2. It is not my view and, to be blunt, my own view matters not. However, for what it is worth, my view is that the UK should comply with Hirst No.2 to the fullest extent and allow all prisoners a vote. My previous comment said this !

    Here is Para. 82 of the Hirst judgment.

    82. Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin
    might be, and as being incompatible with Article 3 of Protocol No. 1.

    • Obiter J

      Not wishing to ruffle feathers…

      However, I did point out that the ECtHR judgments should not be read from an English law perspective of ratio and obiter but read in their full because they are littered with European law principles.

      The Court did indeed condemn the blanket policy in the UK. However, they went much further. I maintain the line and am prepared to defend it line by line of the judgment. My interpretation is not the official one, that’s up to the Council of Europe. I would wager that mine comes closest to it than any I have heard or seen so far. Any takers?

  11. Dear all,

    It has been fascinating to read the lively debate on all this (which seems to have turned into a debate on how, and why the UK should come into line – and just to reiterate, I think it should).

    We will no doubt return to this in due course, with the Scoppola oral hearing set for 2 November.

    One last point for now, a new Austrian law came into force on 1 October (passed back in June), in response to Frodl v Austria. The details have just been put up on the CoE’s web site: https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=DH-DD(2011)660&Language=lanFrench&Site=CM

    In brief (and as I see it as I rattle this off rather hastily)
    1) Austria accepts that disenfranchisement must be by judicial decision. It is also reported by the Austrian government that ‘In their decision on disenfranchisement, judges will consider the particular circumstances of the individual case… taking into account the European Convention on Human Rights and the Strasbourg Court’s case law’. Any such decision can be appealed by the prisoner.

    2) As far as I can tell, Austria accepts that judicial disenfranchisement can only occur in respect of (a) persons ‘sentenced with final effect to a term of imprisonment of more than one year, given that there is a link between the offence committed and issues relating to elections and democratic institutions’, or (b) in relations to person ‘if they have been sentenced with final effect to a term of imprisonment of more than five years for criminal offences committed with intent’

    As to (1) above, this is, of course, the most important step, for it controls everything that follows in (2). The need for judicial disenfranchisement was stated to be an ‘essential’ requirement in Frodl – but, if I remember, Hirst merely said this would be good practice. So, I am guessing that the requirement for there to be judicial disenfranchisement may be something which the UK will contest in its third party intervention in Scoppola – but could it be that bit harder for the UK to succeed with this argument now?

    As to (2)(a), it is notable that the conditions when the Austrian judiciary may exercise their new power are, in the face of it, quite limited; something which will also be of interest to the government lawyers presenting their submissions in Scoppola, I assume. The ‘linkage’ point may well also be contested by the British government on the basis that it sets the bar too high and was not expressly set out in Hirst – but this is what the Court is Frodl stipulated, and Austria has accepted this now. As to the five year threshold – i.e. ordinarily nobody convicted for less than five years can be disenfranchised – even if this were arbitrary, we should recall the initial controlling factor of judicial disenfranchisement.

    Of course, none of this will bind the UK in any way. But Austria has clearly shown itself to be a good pupil of ECHR law, and its example must have bolstered the Court somewhat as we look to the forthcoming proceedings in Scoppola.
    Ed

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