On Tuesday evening we will have the latest development in the saga of the UK’s relations with the European Court of Human Rights (ECtHR). While politicians have complained that the ECtHR interferes too readily in UK domestic politics, the GB Equality and Human Rights Commission has published a detailed analysis of UK cases in Strasbourg suggesting that this is not so (see here). Nevertheless the disagreements continue.
Probably the longest running disagreement between the UK and the ECtHR has been the decision of the latter that the automatic disenfranchisement of convicted prisoners under British law breached the ECHR, Article 3 of Protocol 1. This was decided by a 12-5 majority of the ECtHR’s Grand Chamber in the 2005 Hirst case.
This decision has provoked a visceral reaction in the UK: the Labour Government issued consultations on reforming the law, but nothing was implemented; Prime Minister Cameron says the thought of enfranchising prisoners makes him sick; the House of Commons has voted to keep the ban.
The Government tried unsuccessfully to get the ECtHR to change its mind in the Greens and MT case of 2011. Meanwhile the ECtHR has also condemned a more narrowly circumscribed prisoner disenfranchisement law in Frodl v Austria.
The latest stage in this saga comes today as we await the ECtHR’s judgment in Scoppola v Italy (press release describing the case here). The UK Government has been given permission to present arguments in this case. Background commentary is available at UK HR Blog and ObiterJ, while Guardian journalist Joshua Rozenberg has a piece here.
In Hirst, the ECtHR affirmed that the right to vote was a right and not a privilege. Like most of the Convention rights it is subject to qualifications, but any such qualifications need to be justified. In Hirst, the ECtHR said that there needed to be a ‘a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned’ to justify disenfranchisement, and it noted the recommendation of the Venice Commission that in principle a judge should decide on whether disenfranchisement was appropriate (para 71). The UK provision did not meet these stnadards:
It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1. (para 82).
In Frodl the ECtHR Chamber applied the reasoning in Hirst, and in particular reiterated that the decision to strip someone of this fundamental political right must be based on a link between the offence and the democratic system (para 34). Although violations were found in these case, the member states retain the possibility to revise their laws and so devise a more focused disenfranchisement law.
In the past few months, the UK Government has ‘won’ high profile cases involving suspected the deportation or extradition of suspected Islamist militants and the practice of ‘kettling’. Helen Fenwick has even speculated that the ECtHR may be showing greater deference or appeasement in some of its case law. The UK Government presumably hopes that Scoppola will signal another such bout of judicial restraint.
By this evening we will know if the ECtHR has been convinced by the arguments of the UK and Italian governments. If so it will have rejected a position announced by the Grand Chamber and reaffirmed in several Chamber decisions, decisions which were welcome for both setting out reasonably clear guidance and upholding the importance of a fundamental political right.
POSTSCRIPT: Scoppola is now out and the press release is available here. UKHR Blog has a detailed analysis here; Carl Gardner has analysis here. The ECtHR rules that the Italian law did not disproportionately restrict the right to vote, but also reaffirms the Hirst ruling that a general automatic prisoner disenfranchisement rule breaches the Convention. In Scoppola the ECtHR explains that the Chamber in Frodl gave too extensive an interpretation to the comments in Hirst on the involvement of judges.