Lords clash over prisoner voting and European meddling

20 October 2010 by

Updated | The House of Lords debated the vexed issue of prisoner voting yesterday, leading to a somewhat bad-tempered clash between a former Lord of Appeal and the new minister of state for justice.

The debate related to the 2005 decision of Hirst No 2, in which the European Court of Human Rights held that preventing prisoners from voting breached their human rights. The judgment has not yet been implemented in the UK, leading to repeated condemnations from the Council of Europe, which monitors compliance the Strasbourg court’s rulings. The CoE will reexamine the issue on 30 November, when it may decide to sanction the UK.

The debate began with a question from Lord Ramsbotham, a former chief inspectorate of prisons, who asked what action the government are taking to comply with Hirst No 2. Lord McNally, the coalition government’s minister of state for justice, responded with the usual stock response that the government has been “actively considering” the issue over the summer, and that there are “perfectly respectable” views on both sides.

This much we knew. Despite recently reports that deputy prime minister Nick Clegg wants to end the ban (see our post), the Prime Minister’s office has been less positive, saying that whilst the government is considering the issue, “a lot of people in the country would find it difficult to understand the argument that prisoners deserved the right to vote.”

What came next was more interesting. Lord Scott of Foscote, a former member of the House of Lords judicial committee (now the Supreme Court), and also known for the Scott Report, entered the debate:

Section 2(1)(a) of the [Human Rights] Act states that Strasbourg court rulings should be taken into account, but an amendment to make them binding was rejected by this House and was never part of the Bill. Is the Minister aware also that the Hirst (No. 2) judgments contained a dissenting opinion from five of the 17 judges, including Judge Costa, and that in the opinion of many, including myself, the dissenting opinions are far more convincing than those of the majority? In these circumstances, does the Minister agree that it is not open to the Strasbourg court to add to the human rights enshrined in the convention in the manner in which it from time to time does…

He ended by asking starkly whether the minister agreed that “the Government must govern this country according to the laws in force in this country without regard to the occasional extravagances of the Strasbourg court?

Lord McNally answered with what was effectively a heckle:

one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.

Perhaps the new justice minister momentarily forgot that Lord Scott is a highly respected former judge, and that since he has now retired from practice, it is unlikely that he would be making a fortune, or anything, from his legal opinions. It is also surely the point of allowing professional luminaries to sit in the Lords that they can speak with authority in such debates.

More importantly, Lord Scott’s question hit at the heart of the debate surrounding the Hirst judgment: namely, whether, after the passing of the Human Rights Act 10 years ago, which was supposed to ‘bring rights home’, decisions of the European Court of Human Rights should still have influence on the UK. Lord Scott is right that s.2(1)(a) provides that Strasbourg judgments need only be taken into account by the courts. However, there is a counter-argument, put by another human rights expert, Lord Lester of Herne Hill:

is the Minister aware that there is an obligation under Article 46 of the convention to abide by the judgment? Is he aware that the British judge, Sir Nicholas Bratza, formed part of the majority? Is he aware also that Ireland, Cyprus and Hong Kong have all managed to introduce postal voting for prisoners without the slightest difficulty?

Both could be said to be right. Section 2 of the HRA, which Lord Scott refers to, only applies to courts and tribunals. Article 46 applies to contracting parties, that is the states – including the UK – which have signed up to the Convention. So whilst the UK courts can and sometimes do chose to ignore European Court of Human Rights decisions, that option is not open to the government. And if the government continues to ignore Hirst No. 2, this may lead to more serious consequences than the raps on the knuckles which it has received so far.

The UK has a generally good record in implementing the Strasbourg Court’s decisions (see this post), but Hirst No 2 is becoming an embarrassment. And the Lords debate, although slightly bad-tempered, brings to the fore the complex relationship between the European Court of Human Rights and the UK. It can be argued that, simply, the UK has signed up to follow European judgments and cannot resile from this commitment without doing so officially. This appears to be the aim of William Hague’s slightly dubious ‘sovereignty clause‘ .

But one of the stated aims of the Human Rights Act was to bring human rights decisions within the ambit of the UK courts, which surely have a better understanding of the complex social and political issues which often colour human rights law. The coalition government, or at least the Conservative majority within it, appears to mistrust the European Court’s “occasional extravagances”, which are seen as meddling. Some of UK’s highest judges agree too. This debate may ultimately expose some of the fault lines between the coalition partners: it would appear that Nick Clegg is keener than David Cameron to give prisoners the vote. But whilst the conservatives may not like some European decisions, it is difficult to see how it can go on ignoring them without falling out with the Council of Europe, which could lead to serious sanctions.

Update 21 Oct 2010 – Joshua Rozenberg writes on the issue in today’s Guardian, arguing that it was “mischievous”  to say that “the rulings of the Strasbourg court are not binding on our domestic courts”. Rozenberg argues

He is right but he misses the point.If the English courts were now being asked to decide whether a particular prisoner should be allowed to vote, they would need to do no more than “take into account” what Scott dismissed as “the occasional extravagances of the Strasbourg court”.

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  1. Evan Owen says:

    One of Her Majesty’s Minsiters misled Parliament?

    How about Gordon Brown and his declaration that the Financial Services and Markets Bill was compatible with Article 6?

    None of the declarations that I have seen hold water.

  2. John Hirst says:

    Indeed there was clearly a clash, however I would hardly call this little skirmish a debate.

    I declare I have an interest in the final resolution of my case Hirst v UK (No2). According to the office of the execution of judgments, I own the case bearing my name.

    According to the Treaty of London 1949 (Statute of the Council of Europe), the UK agreed to abide by the Articles and Protocols of the Convention and abide by the Court decisions.

    In February 2010 at the Interlaken Conference, the UK reaffirmed its obligations to abide by the Convention and Court decisions. The then Attorney General, Baroness Scotland, signed the Interlaken Declaration on behalf of the UK. The Interlaken Declaration was laid before both Houses of Parliament, and therefore is binding upon the UK.

    It is worth bearing in mind that the Interlaken Conference was concerned with the amount of applications before the Court, and the failure of Member States to abide by the Convention and Court decisions. Therefore, it was decided that the Council of Europe be given more powers under the Lisbon Treaty to force Member States into compliance. Under the Treaty of London the power exists to expel a Member State for not abiding by the Convention and Court decisions. Protocol 14 came into force on 1 June 2010, this provides for Rule 11 infringement proceedings to begin against the UK.

    Under the Convention the Court decision is final. Therefore it is binding on the UK. It is not open for the UK to debate whether prisoners should get the vote because the decision has already been reached. All the UK has to do is implement the Court decision. The UK is trying to argue the case again which they lost in the Chamber and then lost again on their appeal to the Grand Chamber. The losing party does not overturn the case it has lost, thereby making the winner the loser.

    Smith v Scott declared that s.3 of RPA 1983 was incompatible with Article 3 of the First Protocol of the Convention. Jack Straw misled Parliament when he stated that there was no case where the government had not amended legislation following an incompatibility ruling.

    The Electoral Commission and Venice Commission have both reported that s.3 of RPA 1983 must be repealed. It is no good looking into a hole when the hole needs filling. In the hole is the ticking time-bomb left by Baroness Scotland.

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