Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates

27 October 2011 by

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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  1. FatherDougal says:

    The ECtHR has become a power hub for pro-European politics. Their judgments have shifted from seeking to prevent mass abuse of human rights to encouraging and promoting vexatious claims from left-wing liberals. The margin of appreciation doctrine is pointless with no clear ratio for when it is to be used. The ECtHR decides on whether to restrict or widen the margin according to their own intentions.

    The AG makes a very good argument insofar as a member states ability to determine issues of social policy is concerned. There is no European consensus on prisoner voting and the social policy of nations differs from country to country.

    This saga has become an issue about how much power Strasbourg should or should not have. The issue is, however, one of social policy and the question is very simple.

    ‘why should convicted criminals, who abdicate their social responsibility, be afforded the opportunity to participate in civil society’.

    And before Hirst tells me that Strasbourg has declared that the right to vote is a human right as opposed to a civil right, I know but I do not agree. This fundamental question should be one for the UK government, not pro-European liberals sitting in Strasbourg.

    1. Actually, my case is evidence that the Executive, Parliament and Judiciary abdicated responsibility for the issue of convicted prisoners human right the vote. Therefore, the Court was right to rebuke the UK.

      My case states that European consensus was not a determining factor.

      The Court accepted that I was right and that the national authorities were in the wrong, and that morally and legally the UK was found to be wanting.

      A failing State is in no position to be judge in its own cause. That’s like the lunatics taking over the asylum.

  2. Stephen says:

    The UK’s margin of appreciation with respect to voting is wide. Article 3 allows the expression of the people’s will to be achieved through proportional representation, AV, or first past the past. It also allows the UK to determine the age at which sufficient maturity has been achieved for voting purposes. Hence the UK is empowered to take into account domestic circumstances and preferences when it implements the principle contained in Article 3. What the UK is not entitled to do, because it is outside the margin of appreciation, is to defy the principle of universal suffrage contained in Article 3. The principle must be complied with; how the UK complies is a matter of domestic choice.

  3. James Lawson says:

    How history doth repeat! Lord Mackay of Clashfern, as Conservative Lord Chancellor visited Strasbourg on 25-26 November 1996 to express his government’s dismay over the European Court’s unwillingness to grant the UK a greater margin of appreciation in some of the 42 violations of the Convention that had been found against the UK up until that that time. His particular concern was his Government’s anger over the judgment of the Court handed down the year before that the UK had used excessive force in allowing soldiers from 22 SAS to blend three IRA terrorists with the Tarmac in Gibralter and across the border in Spain. Grieve and Mackay share the same purpose in their respective visits – government pique over politically inconvenient judgements which they believe will impact negatively on their relationship with the public. Mackay achieved very little. In fact, he was sent away with a flea in his ear. It is difficult to see what, if anything, our Attorney General will achieve that Mackay did not.

  4. Stephen says:

    Does the social contract contain express terms? Has the entitlement to vote ever been an express term of this contract? Does the government of the day adhere to the (implied?) terms of this contract e.g., a right to housing, to an adequate income, etc?. Clearly, the UK view is that an entitlement to vote arises from a bargain struck between individual and State. The ECHR sees the same entitlement as a fundamental and (almost) inalienable human right.

    A social policy justification, as per Dominic Grieve, for restoring the death penalty (eg deterrence etc) can be made. The death penalty (at least in Peace time) is outlawed across Europe by the ECHR. It seems inconsistent to argue that domestic social policy should trump the voting article of the ECHR but at the same time to accept that the death penalty article should trump the social policy arguments for restoration of judicial killing.

    In any case, Article 3, Protocol 1 is quite clear and, if it means anything at all, it must forbid desenfranchisement of prisoners by virtue of their imprisonment. It seems to me that the UK legislature is seeking to read into Article 3 something which it does not contain, i.e., an exclusion clause that allows signatory states to opt out of Article 3’s seemingly absolutist fiat. Even if it was possible to read into Article 3 exclusions, Article 14 (which the ECtHR did not invoke in its judgement) outlaws exclusion of any class or status of person. The word status I would read as to include prisoners.

    I hope the days when the great and good can read anything they choose into law are over. Otherwise it really is Alice in Wonderland where “words mean anything I want them to mean”. Article 3 should be read literally and taken at face value. If this is done then the UK must fall into line.

  5. Dear Ed

    The short answer to your headline is no.

    “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”.

    Wrong, and wrong.

    The principle of subsidiarity requires the UK to comply with Hirst v UK (No2). It is not for the AG to dictate to the Court upon a principle he knows very little about. Rather than advising the Court, he should be advising the UK to pull its finger out and implement the ruling in my case. Prisoner voting is not a social policy, the Grand Chamber has ruled that it is a human right under Article 3 of the First Protocol of the Convention. There are no strong, opposing reasonable views held, Parliament did not fully debate the issue, rather a belated Commons held a sham debate after Parliament had been found guilty, it’s the judgment of the Court which matters and is the appropriate venue. It is for the electorate to choose the elected not the elected to choose the electorate. It is the UK which is seeking to interfere, the Court merely did its job. The disenfranchise of prisoners was without reasonable foundation, if not back in 1870 then certainly subsequently. The UK’s national practice is at odds with its obligations under the Convention, it was advanced by me and accepted by the Court. It remains for the UK to accept it or leave the Council of Europe.

    At a general level I do not accept that it is a sensible approach. The Court in Hirst No2 stated that this was a first for them. The UK appealed and lost, the GC decision is final. The sensible approach is to abide by the ECtHR decision.

    No, Parliament has not fully debated the issue. Parliament is both Houses and not just the Commons, and even the majority of the Commons refused to participate in the sham debate arranged by the Backbench Business Committee. It is worth bearing in mind that prior to it taking place, the BBBC summoned David Cameron and instructed him to curb the power of IPSA and curb the power of the ECtHR. Even if a proper debate had taken place, it is too late the Court had already accepted my point. The last chance for a proper debate was in 2000. George Howarth simply dismissed the notion of convicted prisoners be allowed to vote, but because it was known that a High Court challenge was in the pipeline it was decided to grant unconvicted prisoners the vote.

    On the contrary, the Hirst judgment was very clear and those that claim otherwise are confused and any criticisms should be levelled at them and not at the Court. The same applies to Frodl. Ed’s very simplified gist is an accurate summary. What is manifestly without reasonable foundation is the sand castle built by the Tories because it simply gets washed away by the incoming tide.

    The Committee of Ministers rules are perfectly clear, Member States cannot rehash arguments already lost in the Court. I was tickled pink when MPs and the media claimed that public opinion would be offended. I fail to see any logic in arguing points already lost and which are not the subject of appeal. In any event, of those who could be bothered to engage in Labour’s dodgy consultation exercises on prisoners votes 47% favoured full enfranchisement (even though this was not an option), and only 4 respondents, not 4%, supported the government’s line of limited enfranchisement to either 4 years and under or 12 moths and under. If this is any measure then the public was not actually opposed to it at all. That only leaves certain elements of the media #hackgate and all that, and certain MPs and Lords expenses fiddling and all that.

    It is a shame that the Scoppola judgment is only available in Italian, but the gist of the case is in English. Given that the GC had rejected appeals in Frodl and Greens, I was disappointed that the GC decided to accept to hear the appeal in Scoppola. Some twerp in the House of Lords suggested it might provide an opportunity for the UK to play for more time. Enter stage extreme right Dominic Grieve, on his pantomime horse. The front end is charge of the lightheaded brigade, and the rear end huffing and puffing is tilting at windmills in Strasbourg.

  6. ObiterJ says:

    Mr Grieve appears to be speaking solely for an element in the Conservative Party which, like the tabloids, sees the Convention and the Court as things which should be marginalised as far as possible. In their hearts, they dislike it. Their every move is to try to distance the UK from the Convention thereby reducing the protection of rights available to the citizen (or should I say “subject”) and increasing the power of the Westminster political elite. We live in worrying times.

    Protocol 1 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.

    The “free expression of the people” is not secured by excluding from an election a significant section of the populace.

    The voting ban is outdated, irrational and arbitrary in operation. Furthermore, as the article points out, there has been no truly rational debate in Parliament about the Hirst No.2 case. All they are bothered about is the nuisance Strasbourg court interfering with what they want to do.

  7. The question of prisoners’ right to vote has mostly been discussed as a matter of human rights law and criminal law. I am much more interested in the political philosophy aspect:

    The legislature allows the judiciary to remove voting rights of part of the public. The people concerned will be barred from voting and thus punishing the MPs who voted to strip them of a very fundamental right of a citzen. What stops the legislature to carry on and strip more and more groups that the majority of the House of Commons happens to distrust of their right to vote?
    Sure, the next Parliament could change the law, but remember, those affected by the voting ban won’t have representatives there.
    That’s a dangerous thing in my eyes.

    On a lighter note, as a voter I am far less concerned by convicted criminals voting than by the equality between the vote of an uninformed pot-smoking 19 year old who is drunk on voting day with my vote, the decision for which I have reached after reading 3 newspapers for months before voting day and meeting all candidates in my constituency.

  8. I don’t think the subsidiarity principle crosses over to Human Rights very satisfactorily. Member States need a ‘referee’ or watchdog rather than being allowed to self-police. People who are allowed to self-police rarely find fault with themselves.

    I don’t like the ‘will of the people’ or ‘democratic override’ or ‘outraged constituents’ arguments. All are fallacious in logic – just because a lot of people think something does not make it right (formally called [i]argumentum ad populum.[/i]) As I have repeatedly said, such a thing can allow majorities to bully minorities. Three examples of this include UK v Prisoners (votes,) UK v. Travellers (Dale Farm) and UK v Deaf/Disabled people (being targeted again and again for cuts.)

    Hitler was elected, he did his own thing in his country, and he abused people.

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