In my last post, I set out some of the salient parts of the Grand Chamber's decision to uphold Italian law allowing for the right to vote to be denied to those convicted of specified offences and/or serving particular sentences. This, said the Court, was within the margin of appreciation afforded to Convention States, who were entitled to set their own schemes concerning prisoner voting rights, provided that such a scheme was a proportionate response to a legitimate aim. In the second part of that post, I consider what the judgment means in its terms, for the UK and whether, in light of the compelling dissent of Judge Bjorgvinsson, the decision represents more of a victory for the majority of the political establishment than they would prefer to admit.
What now for the UK
Whilst this case did not directly involve the UK it was important because following MT v UK, which was an action brought against the UK for failing to implement the Court's ruling in Hirst, the Government successfully argued for a stay on implementing measures pending the outcome in Scoppola. This judgment now means that the Government have 6 months in which to bring forward legislative proposals to allow prisoners to vote within the terms of the Court's case law.
Indeed, so keen were the Government to avoid this outcome, the Attorney General himself, Dominic Grieve MP, intervened. Firstly, he argued that as a point of principle, consistent with the wide margin of appreciation afforded to Contracting States in respect of the right to vote, it was for each State to decide for itself which arm of the State should have the power to take decisions concerning prisoners' voting rights. Secondly, the disenfranchisement of all prisoners was not a "blunt tool" since by definition it only applied to those who were deemed to have committed crimes which crossed the custody threshold and justified imprisonment. Moreover, the policy furthered the legitimate aims of enhancing civic responsibility, respect for the rule of law and encouraging citizen-like behaviour. Accordingly, the UK approach fell within the margin of appreciation, could not be described as manifestly arbitrary and the Court's ruling in Hirst (no 2) was wrong.
The Court was having none of it:
"95. It does not appear... that anything has occurred or changed at the European and Convention levels since the Hirst (no. 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined. On the contrary, analysis of the relevant international and European documents and comparative-law information reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners’ voting rights."
The Court did however retreat from its position in Frodl by holding that the requirement of proportionality did not mean that a judge would have to decide whether or not to ban a convicted person from voting in every case as part of their sentencing remarks.
In reaching that decision, the Court explained that the reasoning in Frodl:
"99. ....takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share. The Grand Chamber points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure. The relevant criteria relate solely to whether the measure is applicable generally, automatically and indiscriminately within the meaning indicated by the Court ...such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge."
Notwithstanding the acknowledgement that our courts make no reference to disenfranchisement in sentencing and that nothing beyond the fact that a custodial sentence is imposed would suggest any real thought had been given to it:
"100 these are considerations of a general nature: they did not concern the applicant’s particular situation and, unlike the arguments based on the general, automatic and indiscriminate nature of the disenfranchisement, they are not reiterated in paragraph 82 of the Hirst judgment, where the criteria for assessing the proportionality of the impugned measure are set out."
All in all, the judgement should be welcomed by the Government. Yes, they still have not got the blanket ban they wanted but by emphasising the breadth of the margin of appreciation several times, the court has demonstrated that it has no intention of imposing its own scheme Convention States. On the contrary, "the principle that each State is free to adopt legislation in the matter in accordance with its historical development, cultural diversity and political thought within Europe" and its commitment to allowing "each contracting State to mould its own democratic vision" were too important for that.
Hirst (among a growing list of other cases) wahe rus and continues to be seized upon by politicians and the right-wing media to deride the ECHR for undermining British sovereignty. In that regard, it is noteworthy that in outlining many of the principles discussed in this post, including those which emphasised the freedom of Convention States to create their own legislation in cases such as this, the Grand Chamber referred extensively to Hirst. Unfortunately, the response to Scoppola has been equally hostile.
"Will the Prime Minister give an undertaking that he will not succumb to the diktat from the European Court of Human Rights in relation to prisoners voting, that he will stand up for the resolution that was agreed in this House by an overwhelming majority and that he will stand up for the sovereignty of this House and the British people?"
Asked Mr Nigel Dodds MP (Belfast North) (DUP) at PMQs last week.
"The short answer to that is yes. I have always believed that when someone is sent to prison they lose certain rights, and one of those rights is the right to vote. Crucially, I believe that it should be a matter for Parliament to decide, not a foreign court. Parliament has made its decision, and I completely agree with it."
Came the reply. This despite the fact that when you think about it, putting to one side the specified offences, the Court has sanctioned a ban on all convicted persons serving 3 years or more for any offence. This potentially includes a lifetime ban where sentences of 5 years or more have been imposed. This goes beyond what the Government wants. Here, you may be denied the vote whilst you are in prison but that right is recovered upon release. Take that together with the fact that the court was satisfied by the 3 year requirement not on the basis of the length of the sentence but the fact that it demonstrated specific thought had been given to the circumstances in which the right to vote would be lost and the Government would appear to have a significant degree of freedom.
Of course, such niceties do not quite fit the mood of the moment. Nor does a reasoned debate about how the loss of the right to vote fits into the principles of criminal justice which, one could be forgiven for forgetting, are about rehabilitation and re-intergraton into society and not just punishment. Instead, both the Government and the Opposition have united under the banner of indignation and appear to be advocating paying lip-service to the ruling by bringing forward token legislative proposals that will never actually be implemented. Although, as Adam Wagner notes, that position is surely unsustainable.
David Bjorgvisson - an unhappy judge
Judge Bjorgvinsson is also dissatisfied by the majority opinion in Scoppola. In his dissenting judgment, his starting point as regards the importance of Article 3, Protocol 1was essentially the same. Whilst he agreed that the applicant's rights had been violated, in a short, compelling dissent, he could not find that infringement to be justified.
His main objections are conversely the same as those reasons discussed above which should give the Executive comfort. However, in his view that makes
"the position taken in this judgment incompatible with the Court's findings in the Hirst judgment"
He took each of the majority's main reasons in turn.
1. Individual assessment by a judge was not mentioned in the final conclusions drawn by the Court in Hirst
He objected to the first argument on three grounds. Firstly, he was not prepared to dismiss the fact that a judge did not specifically consider the proportionality of losing the right to vote on a case-by-case basis as merely a general consideration. Secondly, nor was he able to draw any significance from the fact that it was not mentioned among the decisive factors listed in the court's conclusions. Court there, as here, had been concerned about the automatic, general effect of a ban on a large group of prisoners. Thirdly, it did not follow from the fact that this was not mentioned in the court's ultimate conclusions that it was not relevant in assessing the proportionality of a measure.
2. The Italian legislation was not a blunt tool
"just like the United Kingdom legislation, Italy’s legislation, is a blunt instrument stripping of their Convention right to vote a significant number of persons and doing so in an indiscriminate manner and to a large extent regardless of the nature of their crimes, the length of their sentences and their individual circumstances."
In this regard, it was also worth noting that even the UK scheme had exceptions i,e, those imprisoned for contempt and in default of paying a fine. Ultimately, it followed that such differences as did exist between the schemes were not enough to justify the infringement caused by Italian law.
3. The Italian law took sufficient account of the need for proportionality
In response to the majority's view that the Italian legislature had shown
"[106]....concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account such factors as the gravity of the offence committed and the conduct of the offender."
Judge Bjorgvinsson remained unconvinced
"No sufficient assessment of proportionality has been made in the present case, either by the legislature or by the courts, as regards the justification for depriving all these prisoners in Italy of their voting rights beyond the end of their prison sentence, and many of them for life, as a result of their forfeiture of the right to hold public office."
Viewed in that light, it is difficult to disagree with the conclusion that the majority had given a very narrow interpretation to the more robust approach in. Hirst. Indeed, the judge was even more scathing:
"the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe."
If we accept that conclusion, the next question is why would the Court take such an approach? It seems to me that this case shows that the Court is sensitive to the political climate in which it operates. I know that there are those who would like to think that judges are impervious to such things but others have been more candid (see for example Barones Hale, "A Minority Opinion", British Academy Maccabaean Lecture (2007)).
The Court has shown that it is conscious of the differing political histories and cultures among the Convention States and that it is willing to compromise accordingly, within certain basic boundaries. If more of those in positions of influence were willing to accept that then perhaps we would see an end to the tiresome anti-Human Rights rhetoric. In the meantime, I guess we'll have to put up with mostly disappointed prisoners, one or two unhappy judges and general dissatisfaction all round.
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