Craig Barlow & Jason Hadden consider the Scoppola controversy
When national newspapers and Tory MPs are jumping up
and down about a decision on voting in Europe you appreciate that
something must be stirring.
In our previous article “Bars & the ballot box” 161 NLJ 7470, p
828, we considered the legality of the UK’s blanket ban on prisoners’
right to vote. We argued that it was relatively easy for the UK to bring
domestic law into compliance with Art 3, Protocol 1 of the European
Convention on Human Rights (ECHR) by creating a tiered system of
disenfranchisement.
In
Scoppola v Italy (No 3) (App No 126/05), 17 judges of
the grand chamber of the European Court of Human Rights (ECtHR)
revisited the law. The court was being asked to consider a convoluted
Italian system, whereby suffrage is removed from prisoners not merely
during incarceration but for longer. If sentenced to periods of
incarceration of between three to five years the right to vote is either
suspended for five years or lost for life. As such, the ECtHR carried
out a comparative review of 47 member states and concluded that the
Italian system was compliant. This led to dissent from within its own
ranks (Björgvinsson) with a judicial opine: “Regrettably…[this]
judgment…has now stripped the
Hirst v UK (No 2) (App No 74025/01) judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.”
Thus
Scoppola ignited controversy from all sides. On 22 May, Dominic Raab MP castigated it on
BBC News 24
as: “[A]nother haphazard judgment from the Strasbourg Court…One step
forward, two steps back…almost like a drunk who can’t walk in a straight
line.”
In this article we consider where Scopolla leaves the law and
whether it may lead to a “constitutional clash” between the ECtHR and
the UK’s Parliament.
Scoppola
Art 3 of Protocol 1 to the ECHR provides: “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.”
Some commentators have recently argued that “if you look back to Art
3 of Protocol 1, there is no mention of a right to vote, let alone
prisoner voting”. On a literal reading that may be true. But that
ignores Art 25(b) of the International Covenant on Civil and Political
Rights (adopted by the General Assembly of the United Nations on 16
December 1966). If there is no threshold right to vote then the
provision is nugatory. For over 25 years the ECtHR has consistently
adopted a purposive interpretation and held this provision to guarantee
the populace of a member state the right to vote. By the same token not
everyone can vote. A state commonly imposes minimum threshold criteria
such as age, mental capacity, residency, etc. The question is
whether—the conditions the state imposes on a citizen’s qualification to
vote—thwarts “the free expression of the people”.
Hirst had held that UK law was incompatible with Art 3 Protocol 1 of
the ECHR because it created a general, automatic and indiscriminate
restriction on prisoners’ voting rights that fell outside the acceptable
margin of appreciation. The UK intervened in
Scoppola specifically to argue that
Hirst ought
to be overturned. The UK advanced two key arguments. First, that a
custodial sentence in the UK already passed a “seriousness” threshold
that was sufficient to justify the prisoner’s disenfranchisement.
Second, that the UK Parliament had expressly considered Hirst and had
nevertheless voted against granting prisoners the right to vote. Hirst
therefore contravened the principle of subsidiarity.
Scoppola rejected the UK’s first argument and reiterated at
para 96 that: “Disenfranchisement…generally, automatically and
indiscriminately, based solely on the fact that they are serving a
prison sentence, irrespective of the length of the sentence and
irrespective of the nature or gravity of their offence and their
individual circumstances, it is not compatible with Art 3 of Protocol
No. 1.”
That pronouncement is fatal to the compatibility of the UK’s current law. It is true—as Laws LJ opined in
Cheshire—the
ultimate enforcer of a member state’s failure to comply with ECtHR
decisions is the Council of Europe. However, the ECtHR has a coercive
weapon in its own armoury: if a prisoner complains, it can award damages
against a non-compliant state.
There are now approximately 70,000 prisoners in the UK. While the
ECtHR’s procedures might make it take years for the economic pain to be
felt: it takes little imagination to estimate the compensation that a
robust ECtHR could visit upon a wilful and defiant government.
It is in relation to this crucial issue that the court’s decision on
the UK government’s second argument about the “margin of appreciation”
becomes germane. In our view, properly analysed,
Scopolla actually
represents a victory for the subsidiarity argument. At para 102 the
court said: “[E]ach state is free to adopt legislation…in accordance
with…their own democratic vision…the contracting states may decide
either to leave it to the courts to determine the proportionality of a
measure restricting convicted prisoners’ voting rights, or to
incorporate provisions into their laws defining the circumstances in
which such a measure should be applied…[I]t will be for the legislature
itself to balance the competing interests in order to avoid any general,
automatic and indiscriminate restriction.”
Critics of Strasbourg can legitimately argue that Scoppola
represents a volte face from the ECtHR’s previous judicial dictates. It
is certainly true that the court has rejected the proposition derived
from
Frodl v Austria (App No 20201/04) that conformity required
a prisoner’s disenfranchisement to be judicially determined. The ECtHR
has backtracked from such a straightjacket instead favouring a flexible
approach.
The constitutional balance
Greens & MT v UK (App Nos 60041/08 and 60054/08) gave
the government a deadline of 11 October 2011 to bring forward
legislation for compliance. On 30 August 2011, the ECtHR extended that
deadline to six months after the delivery of judgment in
Scoppola.
Paraphrasing Professor Tribe, a modern society defines itself by the
extent of the suffrage it grants to the individuals within its
collective. The corollary is the oft-said adage that a nation is judged
by how it treats its lowest members. The point is how the UK balances
the general right for its competent adult citizens to vote and its
repugnance of criminals who alienate community values. Such a balancing
is consonant with the reasoning of the Australian High Court in
Roach v Electoral Commissioner [2007]
HCA 43, per Gleeson CJ at para 24: “The step that was taken by
Parliament in…abandoning any attempt to identify prisoners who have
committed serious crimes by reference to either the term of imprisonment
imposed or the maximum penalty for the offence broke the rational
connection necessary to reconcile the disenfranchisement with the
constitutional imperative of choice by the people.”
The Italian system is harsher than the present UK system because a
prisoner sentenced to say six years permanently loses the right to vote.
Nevertheless,
Scoppola upheld this on the basis that it is
legitimate for a civilised society to adopt the stance that some crimes
represent a repudiation of a community’s standards such that it is
proportionate to either temporarily or permanently suspend the
perpetrator’s suffrage.
If that point was generally understood, the judges’ reasoning
wouldn’t be seen as drunken or a game of hopscotch and compliant
legislation would be forthcoming.
Craig Barlow is a barrister at Ely Place Chambers, London.
E-mail: cbarlow@elyplace.com.
Jason Hadden is a barrister at St Ives Chambers, Birmingham. E-mail: jason.hadden@stiveschambers.co.uk
Vote of no confidence?
