Prisoner votes and the democratic deficit

20 September 2011 by

I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.

In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3(available in FrenchEnglish press release here), which is going to the court’s Grand Chamber  This is another prisoner voting case.

The Foreign and Commonwealth Office (FCO) wrote to the Strasbourg court on 26 July 2011 asking for permission to intervene in Scoppola, which is another prisoner voting case. Although the FCO accepts that legislation challenged the Italian case is “more onerous” than in the UK (some prisoners in Italy are disenfranchised for life),

On any view, it is likely that the judgment of the Grand Chamber in Scoppola will have a direct impact on the question of which legislative proposals should be brought forward in order to comply with the judgment in Greens and MT.

The FCO also referred to another prisoner voting case, Frodl v Austria (see my post), which “in the Government’s view, is inconsistent with Hirst”. In that case the court went further than simply saying a blanket ban was incompatible with the EHCR, stating:

There should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings.

The Government would not be alone in worrying about Frodl; legal blogger Carl Gardner has argued that in that case

the ECtHR went rogue, stepping beyond its proper role, ignoring a key principle of restraint and even distorting the meaning of its own earlier judgment in order to justify going much further. Frodl really is a stinker of a judgment.

It should not noted that whether or not Frodl was a “stinker” of a judgment, Austria has now fully complied with the ruling and introduced new laws on prisoner voting.

The Court responded to the FCO on 30 August 2011:

Having regard to the lapse of almost six years since the ruling of the Grand Chamber in Hirst… to the fact that a general election took place in May 2010 and that no measures had been put in place… and to the further lapse of time which would occur pending the delivery of the Grand Chamber judgment in Scoppola (no. 3), the Chamber cannot contemplate any further unnecessary delay.

So the Chamber cannot contemplate “any further unnecessary delay”. Except…

The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no. 3) for the introduction of a Bill to Parliament.

The UK therefore has until six months after the Scoppola  judgment, which could be a year away, to introduce a bill to Parliament. My view is that it is very unlikely that the Grand Chamber will reverse its own ruling in Hirst No. 2, and the UK will still therefore be obliged to let some prisoners vote.

But the Government may be right that Frodl took things too far. Taken to its logical conclusion, the effect of Frodl would be to give practically all prisoners the vote, which does raise questions of whether the court is providing any wriggle room (the “margin of appreciation”) to states at all. Although the court is in many senses a federal court of Europe and sometimes must lead from the front on issues – such as blanket disenfranchisement of prisoners – there does seem to be a legitimate debate between states as to what categories of prisoners should remain restricted from voting.

It is important to remember that our Parliament has signed up to “abide by the final judgment” (ECHR Article 46) of the court. This usually works fine, and given a little cajoling the UK government does eventually implement decisions against it, which amounted to a grand total of 17 in 2010. But the prisoner voting issue has stretched the government’s relationship with the court and no resolution is in sight.

The Government argues that the will of the people is against prisoners voting and that Parliament has also expressed its strong view, albeit in a non-binding vote. This raises wider issues; as the Justice Secretary Ken Clarke said recently in his evidence to the European Scrutiny Committee:

the big issue is subsidiarity. It is accepted on all sides that the main duty of complying with the European Convention on Human Rights lies on the Governments of the member states. … very broadly, we have to decide to what extent the court in Strasbourg takes into account the judgments of national courts, the judgments of national Parliaments, when they have acted in accordance with what they believe to be their obligations under the Court of Human Rights.

“Subsidiarity” is a trendy way of talking about the margin of appreciation (see this article), but in Ken Clarke’s view it is also a code word for the perceived “democratic deficit” in the operation of the court and, as Joshua Rozenberg has written, a spur for the ongoing movement to reform it.

Things should not be taken too far. Just because the UK disagrees with a judgment does not mean there is a “democratic deficit” in the structure of the court. It is the court’s role, to an extent, to protect unpopular sections of society. But it must also try to ensure that it does not undermine its own authority by imposing too much, too fast.

I suspect that the Grand Chamber has accepted the referral request in Scoppola in order to clarify the apparent conflict between Hirst No. 2 and Frodl, and probably to reduce the effect of Frodl and give states a wider range of choice. Otherwise it risks falling out with the UK and Italy who may simply refuse to implement the rulings. Successive UK governments should probably have done more to implement the ruling but, given the issues raised by Frodl, this problem is also to an extent of the court’s own making.

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  1. There is a democratic deficit in this country. That is, convicted prisoners being denied the vote. As Lord Woolf has said, “There is a lack of justice in prisons”. Given that prisons are part of the criminal justice system, this state of affairs in 2011 beggars belief. Kenneth Clarke is the Secretary of State for Justice and Lord Chancellor. Legally, the buck stops with him. Notwithstanding that the Coalition agreement sought to pass the buck to Nick Clegg, the LibDems, and the Cabinet Office. It would appear that Kenneth Clarke is exercising power without responsibility. This practice began under Charles Falconer and continued under Jack Straw.

    Adam has used the word implementation when it’s non implementation that is the issue. The UK has deliberately ignored fully complying with the Hirst v UK (No2) judgment. On the day following the judgment The Sun comment suggested that it should be ignored. By following The Sun’s advice instead of the ECtHR decision the UK is now in deep trouble. In 2006 the Republic of Ireland changed their law to allow all convicted prisoners to vote. In their Parliament it was stated that by so doing they were fully complying with the judgment. All it requires is a change of the law.

    This requires a change in the will of Parliament from inaction to action.

    Corruption cannot be tolerated whether it is by MPs and Lords, the Executive, Parliament and Judiciary. It even extends to the Council of Europe, Committee of Ministers and ECtHR.

    Hirst is first, Frodl second, Greens third, and coming in last is Scoppola. Adam refers to the correspondence in relation to the latter. Hirst is the leading case. Frodl refers to the Hirst test. The UK sought to abuse due process by appealing against Hirst in an appeal against Greens. The Grand Chamber was right to reject this approach and gave the UK 6 months to bring forward proposals to amend the law. Now the UK is again seeking to appeal against Hirst in Scoppola. What appears to be getting forgotten is that the UK is under an obliation to abide by the Convention and abide by the Court’s decisions and this includes Hirst. The correspondence does not release the UK from its obligation to fully comply with Hirst. If this was the case, the Registrar would be higher in authority than the Grand Chamber.

    The FCO represented the UK in Hirst and lost. The Grand Chamber rejected an appeal in Frodl, therefore the Hirst test is the leading authority. It is totally irrelevant that the FCO states that the government believes Frodl is inconsistent with the Hirst test. The Grand Chamber has already ruled that the Hirst test stands. It remains for the UK to fully comply with the judgment in Hirst.

    Justice delayed is justice denied. It beggars belief that “the Chamber cannot contemplate any further unnecessary delay”, and then some jumped up clerk decides to give the UK another 6 months of unnecessary delay with fully complying with Greens. The problem is that according to the rules decisions of the Court are required to be fully complied with within 6 months! Hirst has been ignored now for over 6 years! This whole period has been unnecessary, and cannot be legally, politically and morally justified.

    Justice is denied when on the one scale is the ECtHR decision in Hirst and on the other scale is David Cameron saying the thought of prisoners votes makes him physically ill, and Parliament puts its grubby finger down on Cameron’s side. Expenses fiddlers lack integrity.

    The UK is conveniently forgetting that it is the Council of Europe’s and not the UK’s interpretation of Hirst which is final. Ever since Charles Falconer told the World at One what his interpretation of the judgment was the UK has followed this instead of following the CofE’s interpretation. Frodl merely reiterated the Hirst test. My understanding of the judgment in my case is in accord with that of the CofE. That is, the vast majority of convicted prisoners should get the vote. This is in accord with Article 1 and Article 3 of the First Protocol of the Convention.

    It would also appear that the UK misunderstands the subsidiarity principle. Joshua Rozenberg was being economical with the truth in his article. That is not to say that he was lying, just that it was short of the truth, the whole truth and nothing but the truth.

    Kenneth Clarke is cherrypicking from the Interlaken process. His tunnel vision sees only reform of the ECtHR. He is conveniently blind to the reform required by Member States, and the sanctions which can be imposed upon rogue or pariah States. Such a State would be one which failed to ensure human rights, democracy and rule of law. These objectives found the base upon which the Hirst test rests. In case you are in any doubt, that is the high moral ground.

    It is not up to Adam to set the pace of the Council of Europe’s agenda. The Forfeiture Act 1870 through the CofE’s history to Hirst in 2005 is hardly too much too fast. Frodl clarified the Hirst test. If Frodl is weakened it would weaken Hirst and if the Court did this it would lose its hard fought for and won legitimacy. It is not for a Member State which has been found guilty of human rights violation to dictate that the Court changes its decision. The responsibility, as Kenneth Clarke has admitted rests with the Member State to abide by the Convention and Court decisions. It is not a question of the Court falling out with Italy and the UK, The rules are clear, toe the line or leave the Council of Europe and European Union.

    This problem, contrary to what Adam states, is not of the Court’s own making. It is my creation and I claim full credit for it. I did not study law just to put a piece of paper on the wall and make money from my studies. Rather I saw the law from the sharp end and turned the weapon around to give Parliament a taste of its own medicine. It might be called Community Payback. Or revenge is a dish best served cold. In any event, I am glad that my studies meant that I could beat the system. Eton/Harrow and Oxbridge v The University of Crime. The law is there both to punish and protect. Convicted prisoners have been punished by the court sentence, now the law has the duty to protect the most vulnerable group in society.

  2. ObiterJ says:

    i dislike the introduction of the word “subsidiarity” into dealings with the Council of Europe and the European Court of Human Rights. It adds confusion.

    “Subsidiarity” was really dreamed up by John Major for the Maastricht Treaty creating the EU and it is best left with the EU. To people like Kenneth Clarke, “subsidiarity” in relation to Strasbourg amounts to saying – “get off my turf.”

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