European Court Grand Chamber to rule on prisoner votes next Tuesday

15 May 2012 by

The Grand Chamber of the European Court of Human Rights is to deliver its latest, hotly anticipated, decision on prisoner votes next Tuesday 22 May. The case is Scoppola v. Italy (n° 3). The Court’s press release is here.

The UK intervened in the case, with the Attorney General Dominic Grieve QC himself travelling to Strasbourg to explain the UK’s views (including, classily, some submissions in French). As a result, the UK was granted an extension of time to comply with the decision in the original prisoner votes case, Hirst No. 2 and the more recent Greens and MTThe UK will therefore have 6 months from 22 May 2012 to introduce a Bill to Parliament (see this correspondence between the UK and the Court) to make the UK voting system compliant with the European Convention on Human Rights. Which is to say, it will have until 22 November 2012. Or is it 23 November?

Notwithstanding the precise date for implementation, the big question is what the Court is going to decide. I discussed the possibilities in this post; in short, unfortunately the Court has delivered a number of conflicting rulings in relation to which prisoners should be given the vote, starting with Hirst (No. 2) in which it stated, simply, that the blanket ban on prisoners voting was not ECHR compliant and that it would be for States to decide the detail in relation to which prisoners would be able to vote. But the court went much further in a different case, Frodl v Austriain which it effectively told Austria that almost all prisoners should be allowed to vote (see Carl Gardner’s post for a detailed comparison).

As I have said before, I suspect that the Grand Chamber will in Scoppola seek 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. This is likely to be presented as a victory for the UK Government and perhaps even appeasement towards the UK, but in reality the Court probably went too far in Frodl and the Grand Chamber is likely, as is appropriate, reign in the effect of that judgment.

Arguably, the UK’s relationship with Strasbourg has improved since the prisoner voting issue last surfaced, largely as a result of the  constructive engagement at the Brighton Conference and the UK’s successful chairmanship of the Council of Europe. The Coalition Government have, it would seem, moved on from some of the more aggressive rhetoric towards the Court, probably because the Conservative coalition partners have realised that there is no chance, in this Parliament at least, of the power of the ECHR or the Court being significantly reduced.

Of course, this theory will be tested following the Scoppola decision. But one things seems almost certain: the Grand Chamber will not reverse the effect of its decision in Hirst No. 2, so in order to comply with its obligations under the ECHR, the UK will have to give allow some prisoners to vote fairly soon, and realistically before the end of the current Parliament.

All will be revealed on Tuesday. In the meantime, you find links to our previous posts on the issue below.

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  1. Never let any cheeky ragamuffin claim that the UK is delaying all willy-nilly on prisoners’ votes.

    Oh no, the UK is merely waiting for the judgment in Godot v Timbuktu.

  2. Once more into the breach (of human rights). Let’s face it, it’s hardly news the Grand Chamber of the ECtHR to rule on prisoners votes. It was news 6.5 years ago in the case of Hirst v UK (No2). Given that the GC has already decided the issue, why did the ECtHR decide to hear it again in Scoppola v Italy (No3)? Given that the UK lost its appeal in Hirst, why did the ECtHR exercise its discretion in favour of allowing the UK to join Scoppola as an interested party? Surely it constitutes an abuse of process if the UK’s tactic was simply to buy more time?

    In my view, Adam Wagner has erred when he claims that the UK was granted more time to comply with Hirst. The UK was granted more time to comply with Greens and MT v UK, although I have been unable to discover the lawful authority for this, until 6 months after Scoppola is decided.

    In my view, Adam Wagner has erred again when he claims that the ECtHR has delivered a number of conflicting judgments on the issue of prisoners votes. Recently Ch4 criticised so-called expert witnesses in child care cases. There is no evidence to support the UK’s claims that the ECtHR has moved the goalposts. Frodl, Greens and Scoppola all followed the Hirst test. It never ceases to amaze me the amount of people who have failed to understand the Hirst judgment. Having said that I am not surprised when it comes to government lawyers or even ex-government lawyers. Like the Prison Service they tend to be too inward looking.

    I will eat Adam Wagner’s wig if the ECtHR changes the final decision in Frodl by way of Scoppola. Bear in mind that the Grand Chamber has already refused an appeal in Frodl, and the Court simply followed the lead set in Hirst. Apparently, Adam Wagner’s reasoning follows that of the UK’s, that is, that Member States be allowed a wide margin of appreciation. However, he misses the point that Member States are granted a wide margin of appreciation but not so wide as to abuse human rights by not being Convention compliant.

    The UK lost Hirst No2, and there is no legal way under European or international law for this victory to be taken away from me. No amount of spin will turn it into a government victory. The only losers will be the Council of Europe, Committee of Ministers and ECtHR if the Court bends over backwards in Scoppola to appease the human rights abusing UK. It will set a precedent for other human rights abusing Member States to follow. I have yet been unable to discover any GC judgment overturned by the GC. I doubt that the ECtHR will risk bringing down the House of Cards.

    I am less impressed than Adam Wagner appears to be at the drum being beat by the UK. I am more inclined to lead than to follow. I dismiss rhetoric for what it is. It was a non starter when the UK sought to curb the jurisdiction of the ECtHR. I recall reading English law in theory and learned by experience that it may be different in practice. A so-called theory based upon only some human beings being entitled to human rights under the Convention is not a theory at all. It doesn’t stand up to critical scrutiny.

    What this whole case exposes is the need for reform of the Council of Europe. I suspect that the future will see the European Union and Court of Justice of the European Union taking an interest in human rights. If I am right then enforcement steps up a few gears and sanctions police decisions. It used to be the case that the Home Office was trusted to care for prisoners, however, case law showed that the Home Office could not be trusted in this respect. Therefore, the courts stepped in. If the Council of Europe shows that it is not effective in protecting human rights then it provides a vacuum which the EU will fill. In a nutshell, either the UK fully complies with Hirst No2 or leaves the Council of Europe and EU.

  3. cidermaker says:

    I still think this is a fiasco. If rights imply duties, convicted & imprisoned criminals, by failing in their duty to society, shoul forfeit the right to influence that society until they have payed the penalty decreed by society.

  4. r1xlx says:

    this votes isssue is a nonsense that shoudl never have happened. it would be a couple of hour’s work to ensure all prisoners were given the appropriate voting papers for their home towns – assuming that they had the wit to know anything about politics.

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