Date: 19 July 2012
Authors: Craig Barlow, Jason Hadden
Issue: Vol 162, Issue 7523
Categories: Opinion, Human rights
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.
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  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.
Jason Hadden is a barrister at St Ives Chambers, Birmingham. E-mail: firstname.lastname@example.org