Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates
27 October 2011
In his speech earlier this week the Attorney General announced that he would appear in person before the Grand Chamber of the European Court of Human Rights in two weeks’ time, when it hears Scoppola v Italy No2, a case concerning prisoner voting. The United Kingdom is due to intervene in this case, for reasons that readers of this blog will be fully aware of.
I agree with Adam Wagner’s comments that the Attorney General’s speech should (if I may respectfully say so) be applauded for the mature and positive way it addressed some very important issues regarding the future protection of human rights at both the domestic and European level. Here I would like to focus in particular upon what Dominic Grieve said about prisoner voting, and his forthcoming appearance at Strasbourg. On page 9 of his speech he stated:
I will argue that the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation. And this is an argument that I would submit really cannot be advanced in respect of our national practice on this issue.
At a general level, this is a sensible approach and one which, as far as I understand it, is reflected in the vast majority of the Court’s jurisprudence. But how would this approach work out in respect of the prisoner voting issue?
Has Parliament ‘fully debated the issue’ of prisoner disenfranchisement? One of the reasons (but only one) cited by the Court for finding a violation of the Convention in the original Grand Chamber ruling in Hirst v United Kingdom was ‘it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction [the blanket ban] on the right of prisoners to vote’.
This point was picked up by the sponsors of the Backbench Business Committee debate held in the House of Commons in February 2011. The extract from Hirst just cited was quoted within the text of the motion, which went on to state, this House is of ‘the opinion that (a) legislative decisions of this nature should be a matter for democratically elected lawmakers and (b) that on the merits of the issue, the current policy by which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand, is confirmed’. The motion (which did not bind the government) was carried by 234 to 22.
The Attorney General spoke during the debate, making the point that [col 511]:
In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations…
Readers can look back to Hansard and form their own view as to whether, indeed, MPs responded to the Attorney General’s plea. For me the debate was indeed dominated by MPs expressing their frustrations with the role and function of the Strasbourg Court, and there was very little by way of a mature debate on the merits and demits of prisoner voting.
It at least arguable then that, even after the February 2011 debate, it cannot be said that Parliament has ‘fully debated the issue’ of prisoner voting. It is true, of course, that there has been a debate under the motion cited above, and which was carried by a very large majority. But is that enough?
Manifestly without reasonable foundation
The second element of the Attorney General’s position is that Strasbourg should not interfere with a matter of social policy which has been fully debated by Parliament, unless it is ‘manifestly without reasonable foundation’. It is worth adding that this phrase can be found in the Strasbourg jurisprudence, most notably in cases concerning the right to property (in particular, deprivation of property for public interest reasons identified by the legislature).
If applied generally a ‘manifestly without reasonable foundation’ test would reduce Strasbourg’s role enormously, so it is important that the Attorney General sees it as having a limited application to the context he identifies. If the European Court’s power of review had been restricted in this way one doubts, for example, whether the Strasbourg Court would have found a violation of Article 8 in Gillan v UK (excessive stop and search powers in the context of anti-terrorism) and S and Marper v UK (retention of acquitted individuals’ DNA on national database – a blanket scheme in some ways similar to that on prisoner voting).
These judgments have been commended as examples of what Strasbourg can do. Perhaps this is especially so as both cases had been heard by the House of Lords, applying the ECHR, and in both instances the source of the human rights violation was primary legislation (i.e. ostensibly the matter had been fully debated by Parliament).
More generally, the proposition put forward by the Attorney General in the paragraph extracted from his speech above could be seen against the backdrop of a debate as regards the proper role and function of the Strasbourg Court. It may well have been that differences of opinion on that debate lay behind the majority and minority opinions in Hirst v United Kingdom back in 2005.
I am simplifying matters, but, in some ways the minority in that case took the line that the Attorney General is now arguing for. They said there was no clear European consensus on the matter of prisoner voting, so there were ‘opposing reasonable views’ (the Attorney General’s words) etc. and therefore Strasbourg should defer to a domestic Parliament. (They were not saying, therefore, that the British Parliament has decided it this way, so that concludes the matter).
One has the impression, however, that the majority in Hirst would still have been prepared to find that the blanket ban on prisoner voting was ‘manifestly without reasonable foundation’, even if it had been the product of a full debate by a domestic Parliament. The judgment was not clear, and the Court should be criticised for this (as well as further confusion caused by cases such as Frodl), but the majority view appeared to be that the right to vote was just that, a right, and should not be taken away without good justification. The gist of ruling (very simplified here, of course) was that one should not disenfranchise someone purely because they are a prisoner and because this is what public opinion wants.
The effect of outrage
A recurring theme of MPs speeches in February 2011, however, was that constituents would be outraged if prisoners got the vote. The main reason put forward for the loss of vote was that prisoners had broken a social contract with society, and so should be punished by the loss of certain rights, including voting rights. The right to vote was a privilege or a civic right, not a human right. No further justification for the loss of the vote was necessary.
As suggested, Strasbourg saw it very differently – it required justification for the loss of a right and, from its point of departure, might the law be viewed a ‘manifestly without reasonable foundation’?
The Grand Chamber of the European Court of Human Rights will hear the Scoppola case on 2 November 2011. The hearing will be webcast from the Court’s site.
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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