Did the UK misuse European court process on prisoner votes? – Dr Ed Bates

15 April 2011 by

The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.

In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.

Since Protocol 11 to the ECHR entered into force in 1998, when hearing judgments on the merits the Strasbourg Court sits in Chambers and Grand Chambers. The great majority of judgments are delivered by Chambers of seven judges. The Grand Chamber consists of seventeen Judges; it delivered eighteen judgments in 2010.

The ECHR text (Article 30) provides that a Chamber may relinquish jurisdiction over a case to a Grand Chamber when it:

raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court.

Clearly this allows the more important issues of Convention law to be referred up to the more authoritative, and larger, Grand Chamber. Twelve cases were relinquished in 2010.

The Grand Chamber may also rehear a case on which a Chamber has already delivered a ruling. Within three months of the Chamber ruling either party to the case may:

in exceptional cases, request that the case be referred to the Grand Chamber’ (Article 43(1)).

A panel of five judges of the Grand Chamber will:

accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance (Article 43(2)).

The panel is composed of the President of the Court, two Presidents of Sections designated by rotation, and two other judges designated by rotation (Court’s Rules: Rules 24(5)). The Rules of the Court state it is not obliged to give reasons for its refusal to accept a referral (Rule 73(2)). The Court’s monthly Information Notes reveal that many cases are referred to the panel but that only a small percentage are accepted (only twelve were in 2010). The Court’s website lists of all cases currently pending before the Grand Chamber (relinquishments and successful referrals).

A recent, and highly publicised, example of a ‘reversal’ of a Chamber judgment by the Grand Chamber was ‘the Italian crucifix case’ (Lautsi v Italy – see this post), in which no violation of the Convention was found. This case might be an example of why, when Protocol 11 was negotiated, a number of States, including the United Kingdom, regarded the possibility of a rehearing as important. It could act as a check against extravagancies on the part of a Chamber and would allow a State to argue why it regarded the earlier judgment as unsatisfactory and inappropriate.

What then of the recent refusal of the panel of the Grand Chamber to accept the referral of the Greens and MT case (a Chamber judgment from November last year)? Reading the United Kingdom’s referral documentation it makes a persuasive case that what was in issue was ‘a serious issue of general importance’ under Article 43(2). Why then was the case not accepted for re-examination? As has been pointed out, the panel does not have to give reasons for refusal, and it did not here, so we are left to speculate as to what its thinking was. A possible explanation follows.

Hirst v United Kingdom (No2), the ‘original’ prisoner voting case from 2005, was ruled upon first by a Chamber, and then successfully referred to the Grand Chamber, by the United Kingdom, using the procedures described above. Both judgments went against the United Kingdom. Article 44(1) ECHR states that the ‘judgment of the Grand Chamber shall be final’

As Adam Wagner pointed out in his earlier post, it is clear from the United Kingdom government’s request for a rehearing of Greens that it was really seeking to have the Hirst judgment of 2005 overturned on the basis that it was wrong and went too far (it being noted the Chamber in Greens was bound by the Grand Chamber ruling in Hirst). He correctly predicted that the Court would not accept this.

Was the United Kingdom using the Article 43(1) referral procedure for a purpose that it was not intended to serve? The purpose of Article 43(1), to adopt the language of the Explanatory Report to Protocol 11  (the non-binding, yet official document explaining how Protocol 11 was formulated, and expected to operate), ‘is to ensure the quality and consistency of the Court’s case-law by allowing for a re-examination of the most important cases’ (para 47), if the aforementioned ‘serious question/ issue’ (Article 43(2)) conditions are met.

Yet it would seem that the possibility of re-examination only applies to Chamber cases in which the law has not already been settled by the Grand Chamber. We may never know, but the refusal to accept the referral of Greens may well have been because the United Kingdom was using Article 43 inappropriately, i.e. as a vehicle to challenge an earlier Grand Chamber ruling?

But if this is so, and to be clear we do not know if it is, does it not prompt further questions? Can Article 43 never be used to request a reconsideration of an earlier Grand Chamber ruling? If so, how, if at all, may an earlier Grand Chamber ruling be reviewed at Strasbourg if a State or States insist that it goes too far, or subsequent developments throw the original ruling into doubt?

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

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  1. ObiterJ says:

    “Yet it would seem that the possibility of re-examination only applies to Chamber cases in which the law has not already been settled by the Grand Chamber. ”

    That would be a pity if the Convention is to remain a “living instrument.”

    1. Ed Bates says:

      I guess for ‘living instrument’ type cases, when the Law of the ECHR may move forward, the Chamber can relinquish a judgment to a GC, which could then progress the law on the basis that the old GC ruling was out of date (see, perhaps, the Al-Saadoon judgment). Or, an applicant in a Chamber case already in the system, can request a rehearing before the GC on the basis that human rights considerations merit it for the same reason.
      If so, can a State use Art 43 to argue that the law as it currently stands in wrong? Does Strasbourg law only have a forward gear?
      (I am not entirely sure myself of the answers to these questions!).
      best wishes

  2. John Hirst says:

    It is worth being reminded of what Lord Woolf said in his report on the Court’s reforms.

    “If the Court’s long-term viability is to be ensured, it is essential that Member States take appropriate measures to implement the Court’s judgments and prevent repeat violations. The increased use of pilot judgments, which I recommend in this Review, adds to the importance of Member States taking action to avoid repetitive cases from arising after a pilot judgment has been delivered.

    Both the Court and Member States are adversely affected by the non-implementation of the Court’s judgments. The Court suffers from an (unnecessary) increase in its workload, whilst Member States are faced with the expense and inconvenience that arises domestically from repetitive cases. It is my hope that, as the use of the pilot judgment procedure increases, so too will the focus on the rapid and effective implementation of judgments”.

    Greens and MT v UK is a pilot judgment.

    Geoffrey Robertson, QC, in the Mail on Sunday writes:

    “The stage is set for an almighty clash between Europe and the British Parliament in October. That is the date, set by the European Court of Human Rights, by which the Government must devise a law to allow prisoners the vote”.

    In my view, it is a shame that the Court and Committee of Ministers were not more robust 5 years ago in laying down the law to the UK. To date we have not had any explanation why the UK has failed to honour its obligations under the Convention. It would appear that prejudice is the real reason.

    All we have had from the UK since Greens and MT v UK was made final is that the Cabinet Office is considering its options. In my view, the obvious option must be Kenneth Clarke making a remedial order under s.10 of the HRA 1998 to amend s.3 of ROPA 1983 and laying it before Parliament. Such a move may well upset Tory backbenchers but that is a small price to pay to resolve the issue.

  3. Tim says:

    The UK are trying to weasel their way out of a zugzwang.

  4. John Hirst says:

    The answer to your question in the headline is yes of course they did!

    You are being either too biased or too generous to claim that the UK’s submissions make a persuasive case. On the contrary they were so weak that they deserved to be laughed out of court.

    The Rules of the Committee of Ministers are clear there will be no rehearing of arguments already lost in the Court. The UK submissions, save for reference to the sham debate in the Commons, had already been heard and dismissed by the Grand Chamber in Hirst No2.

    The UK was in the dock and was found guilty. In response the UK decided to accuse the Grand Chamber of being guilty. If the guilty losing party can appeal against an unappealable decision until it gets a verdict it can live with it would be like the Neverending Story.

    I am glad that the Court did not allow the political and judical pressure from the UK to influence it to change its mind, like what happened in the Lautsi case. Luckily Hirst No2 is a leading case and a reversal would have altered Frodl v Austria and Scopola v Italy as well as Greens and MT v UK.

    It remains for the UK to fully comply with Hirst No2. There will need to be some backpedaling from the government, media and the UK courts. There will be some red faces with the likes of Dominic Raab and David Davis who claimed special knowledge of my case and how to overturn it. The sooner the UK accepts that the ECtHR is now in a position to enforce its judgments the less painful it will be. Even Lord Neuberger is wrong to claim that domestic law does not assist enforcement of a remedy. At least Lord Hope of Craigshead recognises that ultimately the UKSC has a role in ensuring the Executive and Parliament are held to account in relation to the UK’s obligations under international law.

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