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European Human Rights Law Review

2011

Dialogue, diplomacy and defiance: prisoners' voting rights at home and in Strasbourg
Sophie Briant Subject: Human rights. Other related subjects: Penology and criminology Keywords: Margin of appreciation; Prisoners' rights; Right to vote Legislation: Representation of the People Act 1983 s.3 European Convention on Human Rights 1950 Protocol 1 art.3 Cases: Frodl v Austria (20201/04) (2011) 52 E.H.R.R. 5 (ECHR) Scoppola v Italy (No.3) (126/05) Unreported January 18, 2011 (ECHR) Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41 (ECHR (Grand Chamber)) Greens v United Kingdom (60041/08) (2011) 53 E.H.R.R. 21 (ECHR)

*E.H.R.L.R. 243 Abstract

This article reviews developments in Strasbourg and within the United Kingdom arising from the 2005 decision of the European Court of Human Rights in Hirst v United Kingdom (No.2) that the disenfranchisement of prisoners pursuant to s.3 of the Representation of the People Act 1983 violates art.3 of Protocol 1 to the European Convention. The author assesses the width of the margin of appreciation left to the UK Government further to evolving case law in Strasbourg and analyses the Government's novel attempt to widen the margin of appreciation by engaging the Strasbourg Court in democratic dialogue. In a judgment of the Administrative Court on April 4, 2001, Lord Justice Kennedy considered, and squarely rejected, John Hirst's claim for a declaration of incompatibility in relation to the restrictions on the voting rights of prisoners contained in s.3 of the Representation of the People Act 1983.1 On October 6, 2005, the Grand Chamber of the European Court of Human Rights on Mr Hirst's application held that the disenfranchising provision violates art.3 of Protocol 1 to the European Convention. The political consequences of the Grand Chamber decision are still unravelling. A decade after the determination of the domestic court, Mr Hirst's case has caused some Members of Parliament variously to call for the United Kingdom to disregard its obligations under art.46 of the European Convention to abide by the judgments of the European Court to which it is a party, to repeal the right of direct petition to Strasbourg, and to withdraw from the European Convention altogether. The decision in Hirst v United Kingdom (No.2) raises questions of political philosophy (what are the justifications for denying prisoners the vote in a modern democratic society?), constitutional analysis (has the Strasbourg Court assumed jurisdiction over matters in respect of which national governments have not relinquished sovereignty?) and political diplomacy (can the European Court through the operations of the Council of Ministers be persuaded to mend its activist ways?). These questions and others have received noteworthy attention elsewhere.2 The aim of this article is to review the European and domestic developments following the decision in Hirst while addressing two related questions. First, what is the width of the margin of appreciation the European Court has left to the Government to determine the extent of prisoner enfranchisement? Secondly, what role do and should Parliament and the domestic courts play in shaping Strasbourg's assessment of the margin of appreciation?

*E.H.R.L.R. 244 Essential background

Section 3 of the Representation of the People Act 1983 (the 1983 Act) provides: (1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting

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at any Parliamentary or local election. The disqualification does not apply to prisoners imprisoned for contempt of court3 or following default in non-compliance with a sentence such as payment of a fine4 and, since the passage of the Representation of the People Act 2000, no longer effects prisoners held on remand.5 Article 3 of Protocol 1 to the European Convention 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. The Grand Chamber has interpreted ECHR art.3 Protocol 1 as conferring individual suffrage rights and has held that the undertaking given by the High Contracting Parties obliges them to take positive steps to guarantee these rights.6

The judgment in Hirst v United Kingdom (No.2)

In Hirst 7 the Grand Chamber assessed the compatibility of s.3 of the 1983 Act with ECHR art.3 Protocol 1. It confirmed that the individual rights bestowed by ECHR art.3 Protocol 1 are not absolute, but cautioned that any limitations to the right to vote must not impair the very essence of ECHR art.3 Protocol 1.8 The Court applied its familiar form of analysis to the question of whether the very essence of suffrage rights was impaired: it examined first whether the disenfranchisement regime of the 1983 Act pursued a legitimate aim and secondly whether the measures adopted were proportionate to that aim. The Government's aims were stated to be the prevention of crime, enhancement of civic responsibility and promotion of respect for the rule of law. These were accepted as legitimate. While alluding to doubts about whether disenfranchisement could in practice promote or achieve these aims, the majority held that inefficacy was not a reason to exclude these aims as untenable or incompatible per se .9 The finding of a violation turned upon the proportionality analysis. The Court held that the general, automatic and indiscriminate nature of the restrictions in the 1983 Act took the provision outside the acceptable bounds of the margin of appreciation however wide that margin might be.10 Section 3 of the 1983 Act was criticised for being a blunt instrument which imposed a blanket restriction and as such did not reflect any direct link between the facts of any individual case and the removal of the right to vote.11 The violation of ECHR art.3 Protocol 1 was found by 12 votes to 5. The British Judge, Sir Nicholas Bratza, voted with the majority. *E.H.R.L.R. 245 In a dissenting opinion, judges including the then president of the Court (Judge Wildhaber) and the current president (Judge Costa) complained that the majority's affirmation of the breadth of the margin of appreciation could not be reconciled with their finding of a violation. They pointed out that other restrictions of a general character such as conditions of residence, age and nationality had been held to be proportionate interferences with the Convention's implied suffrage rights.12 In their view, the majority finding was based on a dynamic and evolutive interpretation of the Convention which was not rooted in changing conditions in society.13 Presciently, they highlighted the risk in these circumstances that the Court could be accused of assuming legislative functions and warned that the sensitive political assessments involved call for caution.14

Developments in Strasbourg: the width of the margin of appreciation

The Court in Hirst declined to give guidance to the Government as to the measures it would need to implement to satisfy the requirements of the Convention, emphasising instead that it is primarily for the State concerned to choose [] the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention.15 This course was followed despite the Government having requested detailed guidance in the interests of legal certainty.16 The Grand Chamber may not have foreseen the following consequences of its decision to be non-prescriptive. First, three Chamber level decisions of the European Court have each separately interpreted the Hirst test, giving rise to inconsistent messages about the requirements of ECHR art.3 Protocol 1 . Secondly, reluctance to enact legislative proposals which may in turn be challenged by a

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prisoner in the European Court has fuelled the current appetite in Parliament to stand up to Strasbourg. The Chamber judgments which have considered Hirst are Frodl v Austria, 17 Greens v United Kingdom 18 and Scoppola v Italy (No.3). 19 There was no overlap of judges between these decisions.

Frodl v Austria
In Frodl the Court (First Section) was concerned with s.22 of Austria's National Assembly Election Act which disenfranchises prisoners sentenced to a term of imprisonment of one year or more for offences committed with intent. The sentencing judge has power to suspend the sanction of disenfranchisement.20 In the domestic proceedings the Austrian Constitutional Court was satisfied that the provisions did not violate the requirements of ECHR art.3 Protocol 1 as set out in Hirst since they did not enact a blanket forfeiture of the right to vote and they incorporated a degree of judicial discretion. Adjudicating upon Mr Frodl's application, the First Section of the European Court disagreed. The First Section construed the requirements of ECHR art.3 Protocol 1 further to the decision in Hirst in two ways. The first was that disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings.21 The second elevated the preference for judicial disenfranchisement into an obligation: *E.H.R.L.R. 246 under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.22 The judgment in Frodl became final on October 4, 2010 upon the refusal of the Austrian Government's request for referral of the decision to the Grand Chamber. The refusal of the referral request signified that, in the opinion of a panel of five judges,23 the case raised no serious question affecting the interpretation or application of ECHR art.3 Protocol 1, and no serious issue of general importance.24

Greens v United Kingdom

In Greens the Court (Fourth Section) adjudicated again on s.3 of the 1983 Act which remained unaltered since the decision in Hirst. Unsurprisingly, the Fourth Section, like the Grand Chamber, found a violation of ECHR art.3 Protocol 1. However, in so doing the Fourth Section distanced itself from the Second Section's reasoning in Frodl. While not expressly contradicting Frodl, the Fourth Section chose to emphasise the wide margin of appreciation which the Grand Chamber in Hirst had purported to accord to Member States in this area, the Grand Chamber's refusal to specify the measures which the UK Government should take to comply, and the subsidiary role of the European Court.25 The Fourth Section expressed its regret that the United Kingdom had failed to take steps to comply with the judgment in Hirst, a failure which it noted ran contrary to the UK's art.46 obligations. Its judgment directed the Government to introduce amending legislation within six months of its judgment becoming final and to enact the legislation within a period to be determined by the Committee of Ministers.26 Adopting a pilot judgment procedure27 (the first time such a procedure has been used against the United Kingdom), it declared that it would suspend examination of the 2,500 comparable prisoner voting complaints which it had received pending compliance by the Government with the Court's art.46 direction, in anticipation of striking these cases out under art.37(1)(c) upon compliance. If the direction was not adhered to, the Court retained power to restore the suspended cases to its list under art.37(2), and warned that in these circumstances it could make further findings of violations, and further decisions about just satisfaction.28 The judgment in Greens is politically sensitive. It implied that Frodl went too far but did not expressly contradict it. It told the Government that the choice of legislation was theirs, but emphasised that it retained supervisory jurisdiction to assess the Convention compatibility of any amending legislation. It made no award of damages, but left open the possibility of awarding damages in follow up cases if

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the Government failed to introduce legislative change as directed. Both the applicants and the Government requested that the Fourth Section's judgment be referred to the Grand Chamber under art.44 of the Convention. The referral request was refused on April 11, 2011:29 the judgment in Greens became final as of that date.

*E.H.R.L.R. 247 Scoppola v Italy (No.3)

In Scoppola the Second Section of the Court was concerned with art.29 of the Italian Criminal Code and art.2 of Presidential Decree no.223 of March 20, 1967, which together disenfranchise prisoners sentenced to three years' imprisonment or more. The judgment recited the dicta in Hirst that a blanket ban falls outside any acceptable margin of appreciation, however wide that margin might be. Referring to the decision in Frodl (but not to the decision in Greens ), it reiterated the Second Section's interpretation of the Hirst test, stating that the decision to disenfranchise must be made by a judge and must be duly reasoned.30 It found a violation of ECHR art.3 Protocol 1 on the basis that the disenfranchisement of prisoners under Italian law automatically followed the imposition of a criminal sentence without distinct judicial consideration.

Analysis
The margin of appreciation left by the decisions in Frodl and Scopolla appears vanishingly small. Under the regimes for prisoner enfranchisement which they advance (exclusion from the franchise only by judicial determination and only following convictions for electoral or anti-democratic offences), some discretion may remain with a national judge but little discretion is given to the Government in crafting the legislative framework under which the judge will operate. However, there is both internal ambiguity within the judgment in Frodl (is disenfranchisement by judicial determination obligatory or merely desirable under ECHR art.3 Protocol 1?) and ambiguity arising from the restatement in Greens that a wide range of policy alternatives are available to the Government. The Government is only obliged to follow the decisions to which it is a party. It need implement only the decisions in Greens and Hirst, which demand a legislative change but ostensibly leave a range of options as to what such a change might be. In the light of the decisions in Frodl and Scopolla, the Government's understandable concern is that any legislative change that fails to adhere to the prisoner enfranchisement regime advanced in Frodl will be open to further challenge. The Government may find itself in a parallel position to the Canadian Government in the Suave voting litigation. The Canadian Supreme Court ruled that a complete ban on prisoner voting was unconstitutional in Suave No.1. 31 In response to that ruling, the Government amended the legislation so as to allow prisoners serving terms of less than two years to vote, only to have this declared unconstitutional in Suave No.2 32 (a judgment which had considerable influence on the views of the majority in Hirst ). To avoid recurrent litigation, in any future challenge the political sensitivity shown by the Second Section in Greens must give way to clarification of the specific requirements of ECHR art.3 Protocol 1.

Developments at home: dialogue and debate

Adjudicating on Mr Hirst's claim in 2001 Lord Justice Kennedy stated: the European Court [] requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this Court to defer to the legislature.33 The Grand Chamber in Hirst noted the absence of judicial assessment of proportionality and commented upon the perceived inadequacies of the Parliamentary debate which had accompanied the passage of domestic disenfranchising legislation, stating there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket banit cannot be said that there *E.H.R.L.R. 248 was any substantive debate.34 The Court's judgment makes clear that the level of debate and degree of judicial consideration facilitated its conclusion that the blanket ban on prisoner voting fell outside the acceptable bounds of the margin of appreciation.35 Normative evaluations of Parliamentary debates are a constitutional anathema in the domestic context. The suggestion that such evaluations may form part of a proportionality assessment was emphatically rejected by the House of Lords in Wilson v First County Trust Ltd (No.2), 36 in which Lord Nicholls made clear that the court is called upon to evaluate the proportionality of the legislation, not

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the adequacy of the minister's exploration of the policy options or his explanations to Parliament.37 That an evaluation of Parliamentary debate may undermine the division between judicial and legislative functions was recognised both by the dissenting judges in Hirst and by Judges Tulkens and Zagrebelsky, who cautioned in a separate concurring judgment that this is an area in which two sources of legitimacy meet, the Court on the one hand and the national Parliament on the other. This is a difficult and slippery terrain for the Court.38 In response to Hirst both the domestic courts and Parliament have begun to explore the boundaries of this slippery terrain. The Grand Chamber having called attention to the potential which Parliamentary debate and domestic judicial reasoning have to moderate its adjudications, Parliament in its referral request put the extent of its influence, and the influence of the domestic judiciary, to the test.

The response of the domestic courts

The domestic courts have considered several challenges to s.3 of the 1983 Act following the judgment in Hirst. The most significant of these are Smith v Scott, 39 a decision of the Scottish Registration Appeal Court, R. (on the application of Chester) v Secretary of State for Justice, 40 and Tovey v Ministry of Justice. 41 Smith was the first occasion on which the courts considered the effect of Hirst on domestic law.42 The submission of the applicant was that in response to Hirst, s.3 of the Human Rights Act 1998 (HRA) should be employed to read down s.3 of the 1983 Act to render it Convention compliant. The claimant's suggestion was that the words to the effect that any ban on prisoner voting would apply at the discretion of the sentencing judge should be read into the section. The Registration Appeal Court held that such a course would amount to legislating on its own account in part because of the wide range of policy alternatives that Hirst left open to the Government in amending s.3 of the 1983 Act.43 However, while HRA s.3(1) could not legitimately be employed, the decision in Hirst (which the Court was told was fully accepted by the Secretary of State for Scotland) led the Court to make a s.4(2) declaration of incompatibility.44 The Court in Chester considered the effect of Frodl and Greens on domestic law.45 The Court was again invited to read down s.3 of the 1983 Act pursuant to the interpretive obligation in HRA s.3 or in the alternative to make a declaration of incompatibility. The claimant submitted that Frodl had reduced the policy alternatives available to the Government in introducing Convention compliant legislation and mandated judicial determination of prisoner disenfranchisement. This steer from Strasbourg, it was argued, justified the reading down of s.3 of the 1983 Act in the manner rejected by the Court in Smith or, in the *E.H.R.L.R. 249 alternative, gave a new purpose to a declaration of incompatibility. A repeat declaration of incompatibility was a mechanism by which the domestic court could mediate between Strasbourg and Westminster, making clear to the Government the content of amending legislation demanded by the European Court. It would also reflect disapproval of the Government's delay in introducing remedying legislation. The judgment of the Court was given by Lord Justice Laws. He rejected the claimant's submissions. HRA s.3 could not legitimately be employed: to do so would be a legislative act and nothing less.46 There was in addition no legitimate role to be played by a declaration of incompatibility: given the difficulties in the Strasbourg case law it was not clear that disenfranchisement only by judicial determination was necessarily required, and it would be inappropriate for the court to offer an advisory opinion as to the legally proper content of forthcoming legislation in the light of the deep philosophical differences of view between reasonable people upon the question of prisoners' suffrage.47 In contrast to the European Court, it was not the Court of Appeal's role to sanction the Government for its delay in responding to the judgment in Hirst. 48 The role of the domestic courts in responding to legislative delay was further considered in Tovey. 49 Mr Justice Langstaff rejected the argument that a cause of action arose in domestic law from the failure of the Government to amend the 1983 Act. This was precluded by HRA s.6(6), which provides that the failure to introduce or enact legislation does not constitute an unlawful act. The delay in any event was unlikely to sound in an award of damages under the HRA since the European Court had declined to make monetary awards for violations of ECHR art.3 Protocol 1. Unsurprisingly, Langstaff J. also rejected an argument that the interpretative obligation in HRA s.3 required the phrase legally incapable of voting in the 1983 Act to be read as legally capable.50 He refused the claimant's request for a declaration of incompatibility on the ground that it would serve no practical purpose.51

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The response of Parliament

The timing of Parliament's responses to the judgment in Hirst reflects the actions (and inactions) of the executive. The (then New Labour) Government's initial response to the judgment in Hirst was to embark upon a course of consultations: a first consultation paper was issued in 2006;52 a second in 2009.53 This response suggested at best careful thought and at worst deliberate procrastination.54 Save for Parliamentary questions highlighting the Government's dilatory response,55 there was little legislative consideration of the judgment in Hirst in this period. The Greens judgment prompted more rapid developments. On December 20, 2010 Mark Harper, the Coalition Government's Minister for Political and Constitutional Reform, issued a written ministerial statement which announced that prisoners serving terms of four years or less would, subject to discretionary judicial disqualification, be given voting rights. No timetable was given for introducing the proposed legislation. On January 11, 2011 Members of Parliament voiced their (mainly disapproving) responses to Mr Harper's announcement in a Westminster Hall debate. On February 1, 2011 the Political and *E.H.R.L.R. 250 Constitutional Reform Committee heard evidence about the United Kingdom's obligations arising under ECHR art.3 Protocol 1 in the light of the European Court's various rulings.56 On February 10, 2011 the House of Commons held a debate which made clear Parliament's dislike of the Government's proposal for reform. More significantly, the debate was concerned with the position in which Parliament considered it should stand in relation to the European Court. The motion of the debate was: this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there has been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand. Government ministers and their official opposition refrained from voting. Back benchers had a free vote. The motion was passed following a 234:22 division of the House. The debate reflected at least three views of the relationship between Westminster and Strasbourg. On the one hand, some speakers were cognisant of the United Kingdom's obligations under international law and in furtherance of the principle of the rule of law to abide by the European Court's judgments. On the other hand, other Parliamentarians seized upon the opportunity to proclaim their sovereignty over the European Court. Sitting between these conceptions of the authority of Westminster and of Strasbourg was a self-conscious awareness that the debate might be a forum through which Parliament could influence the opinions of the judges in Strasbourg. The Attorney-General was explicit on this point: The Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate [] will be helpful to the process of finding a way through the problem that is exercising many Members of this House [] In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court [] Despite the difficulties that the House might face, we have a real opportunity, through debate, to shape the dialogue with the Court if we focus on the key issues.57 The Government's referral request relied heavily on the opinion of the House as expressed in the debate that a blanket ban is reasonable and proportionate, and on the views of the Court in Chester that reasonable people may legitimately hold disparate views on the question of prisoners' suffrage. It was an attempt to reverse the flow of judicial thinking in Strasbourg by inviting the Court to attach weight to the views of Parliament and the judiciary in circumstances where, perhaps uniquely, at least the former had been articulated for that specific purpose.

Dialogue, deference and defiance

The Government's referral request put the relationship between the European Court, the domestic courts and Parliament into sharp focus. Its success depended upon a dialogic model of this triangular relationship. Dialogic constitutional theory holds (broadly) that in some contexts the judiciary is not (or should not be) the final arbiter of the content of rights, but rather interacts with the

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legislature through constructive *E.H.R.L.R. 251 dialogue to determine their content.58 The Grand Chamber's indication, given in Hirst that the margin of appreciation can be modified by debate in Parliament made the government hopeful that dialogue might be possible. The Court's subsequent refusal of the referral request in Greens revealed its unwillingness, in the event, to interact with Westminster so as to review the parameters of voting rights. As is permitted by the European Court's rules,59 no reasons were supplied with the refusal of the referral request: its reasoning is a matter of speculation. An obvious difficulty for the Court was that, while the vehicle for the Government's referral request was the judgment in Greens, the substance of the challenge was criticism of the reasoning in Hirst, a decision which has been final for six years. The Court may have feared that to engage in dialogue by countenancing the request would risk undermining the authority of its judgments. While the Court is not bound by its own decisions, past occasions on which the ratio of its judgments have been overturned have reflected a rise in the minimum level of protection which the Court has considered is bestowed by a Convention right. It would have been an unusual and strained use of the Court's living instrument doctrine to have regressed the standards of suffrage rights on the basis that recent Parliamentary debate reflected changing conditions in, or a new consensus between, contracting states. There would have been a clear danger of encouraging states to deploy ex post facto rationalisations of entrenched positions in an attempt to avoid findings of Convention violations. While the European Court has shunned dialogue in the context of a review of Hirst, proponents of dialogue theory will note Laws L.J.'s comments in Chester concerning the evolving use of statements of incompatibility in a strategic partnership between the branches of government,60 which point to a dialogic conception of domestic legislative-judicial relations. Proponents may also argue that the decision in Greens, which invites the Government to put forward legislative proposals of unspecified form, allows the Parliament to converse with the European Court as to what disenfranchisement measures other than a blanket ban are proportionate with ECHR art.3 Protocol 1. In response it might be pointed out that, whatever the future role of declarations of incompatibility, the declaration made over three years ago in Smith played only a minor part in prompting Parliament's recent debate. In the international context it remains to be seen what influence Parliamentary debate may have on the European Court's deliberations if it is required in the future to adjudicate upon a challenge to any legislation which amends or repeals s.3 of the 1983 Act. It is possible that views expressed in Parliament will help persuade the Court to judge as permissible relatively far reaching restrictions on prisoners' voting rights. For the moment however, opponents of dialogue theory will be emboldened in their belief that the European Court of Human Rights does not perceive itself to be participating in any form of democratic dialogue with the legislature [] nor could it sensibly do so [] [it] provides the means for final resolution of the argument.61

Disenfranchisement and diplomacy: concluding remarks

The Government's referral request made a persuasive case that the merits and interpretation of Hirst raised a serious question of general importance under the Convention. In the light of the wider debate within the United Kingdom concerning relations with Strasbourg and the appropriate content of fundamental rights--well illustrated by the recent establishment of a commission to investigate the case for a UK Bill of Rights--the Court might have been expected to have adopted a cautious approach. It could, for instance, have allowed the referral request without conceding that the judgment in Hirst was open for revision by accepting the residual ground on which it was based, namely that an adjudication is required between *E.H.R.L.R. 252 Greens on the one hand and Frodl and Scopolla on the other. An opportunity to clarify the requirements of ECHR art.3 Protocol 1 has been missed and authoritative commentary on the correct interpretation of Hirst is outstanding. As for the Government, an adjudication between Greens and Frodl would not free it from its difficulties in reconciling the judgment with the national context,62 since Parliament has rejected any increase in prisoner enfranchisement. It is caught between the competing sources of legitimacy, Parliament and the European Court. While the European Court offers the government no option save to comply with the requirements of Hirst, it is unlikely that, within the six months afforded to the Government to introduce legislative amendments, Parliament's desire to rebuff Strasbourg will have receded. E.H.R.L.R. 2011, 3, 243-252

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1.

R. (Pearson and Martinez) v The Secretary of State for the Home Department [2001] EWHC 239 (Admin).

2.

See e.g., on the first question, H. Lardy, Prisoner Disenfranchisement: constitutional rights and wrongs [2002] Public Law 524; and, on the second question, M. Pinto-Duschinsky, Bringing Rights Back Home, Making Human Rights Compatible with Parliamentary Democracy in the UK a report published by the think tank Policy Exchange (pp.36-38).

3.

Section 3(2)(a) of the 1983 Act.

4.

Section 3(2)(c) of the 1983 Act.

5.

Representation of the People Act 2000 s.5, inserting s.7A into the 1983 Act. The disenfranchisement of remand prisoners had been an accidental consequence of the residence requirements in the 1983 Act (see Home Office Working Party on Electoral Procedures, October 1999, paras. 2.3.8 and 2.3.9).

6.

Mathieu-Mohin and Clerfayt v Belgium (Series A no.113), judgment of March 2, 1987, pp.22-23.

7.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 41.

8.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [62].

9.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [75].

10.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [82].

11.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [77].

12.

Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens at [4].

13.

Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens at [6].

14.

Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens at [5].

15.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [83].

16.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [52].

17.

Frodl v Austria [2010] ECHR 508, judgment of the First Section of the Court, April 8, 2010.

18.

Greens v United Kingdom [2010] ECHR 1826, judgment of the Fourth Section of the Court, November 23, 2010.

19.

Scoppola v Italy (No.3) (App. No.126/05), judgment of the Second Section of the Court, January 18, 2011.

20.

Section 44 of the Austrian Criminal Code (as amended).

21.

Frodl v Austria [2010] ECHR 508 at [28].

22.

Frodl v Austria at [34].

23.

Comprising the President of the Court, two Presidents of Sections designated by rotation, and two other judges designated by rotation (Court's Rules r.24(5)).

24.

European Convention of Human Rights art.43.

25.

Greens v United Kingdom [2010] ECHR 1826 at [133].

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26.

Greens v United Kingdom [2010] ECHR 1826 at [115]

27.

Pilot judgments have been described by the Deputy Registrar of the European Court as a tool created by the Court to deal with repetitive complaints that highlight the existence of structural or systemic difficulties in the state concerned (M. O'Boyle On Reforming the Operation of the European Court of Human Rights [2008] E.H.R.L.R 1 at 7).

28.

Greens v United Kingdom [2010] ECHR 1826 at [121]. The Court further determined that all future applications raising the complaint would be treated the same way [114]. At the beginning of February 2011, 3,500 claims had been received by the Court (House of Commons Written Answers March 14, 2011 col.162).

29.

Council of Europe Press Release no.328 (12.04.2011).

30.

Scoppola v Italy (No.3) (App. No.126/05) at [43].

31.

Sauve v Canada (No.1) [1993] 2 S.C.R. 438.

32.

Sauve v Canada (No.2) [2002] S.C.C. 68.

33.

R. (Pearson and Martinez) v The Secretary of State for the Home Department [2001] EWHC 239 (Admin) at [41].

34.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 41 at [80].

35.

Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [78]-[80].

36.

Wilson v First County Trust Ltd (No.2) [2003] UKHL 40; [2004] 1 A.C. 816.

37.

Wilson v First County Trust Ltd (No.2) [2003] UKHL 40 at [67].

38.

Joint Concurring Opinion of Judges Tulkens and Zagrebelsky, final paragraph.

39.

Smith v Scott [2007] CSIH 9.

40.

R. (on the application of Chester) v Secretary of State for Justice [2010] EWCA Civ 1439.

41.

Tovey v Ministry of Justice [2011] EWHC 271 (QB).

42.

The case was determined some 15 months after the judgment in Hirst v United Kingdom (No.2), on January 24, 2007.

43.

Smith v Scott [2007] CSIH 9 at [27].

44.

Smith v Scott [2007] CSIH 9 at [56].

45.

The judgment, dated December 17, 2010, post dates Frodl v Austria and Greens but pre-dates Scoppola.

46.

R. (on the application of Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 at [24].

47.

R. (on the application of Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 at [32].

48.

R. (on the application of Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 at [27].

49.

Judgment of February 18, 2011.

50.

Tovey v Ministry of Justice [2011] EWHC 271(QB) at [37].

51.

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Langstaff J. did not appear to have been referred to contradictory dicta of Lord Nicholls in Bellinger v Bellinger [2003] UKHL 21; [2003] 2 A.C. 467, at [50]-[55] (to the effect that it may remain appropriate for a declaration to be made even where, by the date of judgment, the government has already announced legislation to remedy the incompatibility). 52.

Voting rights of convicted prisoners detained within the United Kingdom--the UK Government's response to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst v the United Kingdom , Consultation Paper CP29/06, Ministry of Justice, December 14, 2006.

53.

Voting rights of convicted prisoners detained within the United Kingdom -- second stage consultation, Consultation Paper CP6/09, Ministry of Justice, April 8, 2009.

54.

Criticisms from the Council of Europe, responsible for overseeing compliance with judgments, were voiced inter alia in resolution CM/ResDH(2009)1601.

55.

e.g. written ministerial question of Lord Lester of Herne Hill, March 17, 2010 [HL2569].

56.

A summary of its evidence was published on February 8, 2011.

57.

House of Commons Debate, February 10, 2011, cols 511 and 512.

58.

See e.g. R. Clayton, Judicial deference and democratic dialogue: the legitimacy of judicial intervention under the Human Rights Act 1998 (2004) Public Law 33; T.R. Hickman, Constitutional dialogue, constitutional theories and the Human Rights Act 1998 (2005) Public Law 306; T. Hickman The courts and politics after the Human Rights Act: a comment (2008) Public Law 84.

59.

Court's Rules r.73(2).

60.

R. (on the application of Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 at [31].

61.

P. Sales and R. Ekins, Rights-Consistent interpretation and the Human Rights Act 1998 (2011) L.Q.R. 217 at p.228.

62.

This phrase was used by the Government in its communication to the Council of Europe dated March 1, 2011, available at https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=DD2011%29139&Language=lanEnglish&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackC [Accessed May 6, 2011]. 2012 Sweet & Maxwell and its Contributors