The apparent difference in opinion between the Prime Minister and the Attorney General over voting rights for prisoners raises an issue of fundamental importance: not just about the particular issue of how the United Kingdom is to respond to the judgments in Hirst v United Kingdom (No. 2) 74025/01  ECHR 681 (6 October 2005) and Scoppola v Italy (No. 3) 126/05  ECHR 868 (22 May 2012) but in relation to the more general implications for the way in which UK domestic law relates to the ECHR – Article 9 included – and to the Court in Strasbourg.
On 24 October the House of Commons Justice Committee held an evidence session with Attorney General Dominic Grieve. In the absence of a Commons transcript I transcribed his remarks on the prisoner voting issue myself from the recording on Parliament TV: the relevant passage begins at 10:17:07.
In response to a comment about Hirst and whether the right to vote was a civil right or a human right he said this:
“Two points. I sometimes think that civil rights and human rights are actually in some areas rather merged … The Protocol to the ECHR that provides for the right of the population to express its view in free and fair elections is something that the United Kingdom signed up to. So whether it originates as a civil right or a human right, it is in the Convention.”
“The second thing is that the decision by the court in the case of Hirst, finally … decided in the case of Scoppola, of which we had the decision in May of this year, places a duty on the UK as a signatory to the Council of Europe and to the European Convention to implement change to the Representation of the People Act in this area. Exactly what the UK should do is not specified; and indeed it is quite clear that there is going to be a great deal of latitude in what the UK can do to respect or implement the Scoppola judgment.
“The Scoppola judgment, in a nutshell, said that a blanket ban by statute on convicted prisoners being able to vote was … too much of a blunt instrument. While it was perfectly proper to deny some convicted prisoners the right to vote – indeed, on the basis of the Scoppola judgment [to] deny some … non-custodial sentence prisoners the right to vote or indeed [some] prisoners after release the right to vote – that despite that, the present blanket ban is in breach of the Protocol to the Convention.
“Now: the United Kingdom Government is adherent to the Convention; and the Convention is one of our international legal obligations. And successive Governments – including this one – have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly and the United Kingdom has always been seen as a role-model in areas of international law as to how we go about our business and the fact that we do observe international obligations that are imposed on us. It is, of course, entirely a matter for Parliament ultimately – [for] the Government to make proposals but for Parliament – to determine what it wants to do. Parliament is sovereign in this area. Nobody can impose a solution on Parliament; but, as I say, the accepted practice is that the United Kingdom observes its international obligations. And that is something that is spelt out in a number of places, including the Ministerial Code.
“I’m not in any position to speculate what the outcome would be if the United Kingdom Government and Parliament decided not to respond to the judgment. What would happen in practice is a matter of speculation [in relation to non-compliance by states parties]. What may or may not have happened in the past is one thing. It is at least technically possible that we would certainly be in breach. There’s an issue, I think, which has been canvassed frequently … that there would be damages claims stacking up against the United Kingdom Government in respect of individual prisoners who would claim that their right to vote had been denied them; and therefore that would be costly to the United Kingdom Government unless it chose not to pay those – in which case there would be a further breach of its international obligations.
“And as to what the end-game would be, whether it would mean that the United Kingdom decided to leave the Council of Europe or [would] be expelled from the Council of Europe, I don’t think I’d wish to hazard a guess; but it is at least technically possible that a country which is in breach of its obligations can be removed – although the only occasion that it ever happened is that the Greek Government, I seem to recall, jumped before it was pushed in the 1960s after the Putsch by the generals.
“But if I may say so, I’m not sure that that is, perhaps, the issue. The issue, it seems to me, is whether the United Kingdom wishes to be in breach of its international obligations and what that does reputationally to the United Kingdom. And as I stressed, ultimately this is not a matter where there is not Parliamentary sovereignty: there certainly is – Parliament gives and Parliament can take away. Governments can leave the Council of Europe if they choose to do so. But all I’m saying is that it’s quite clear – and I think accepted by the Government – that insofar as the Scoppola judgment is concerned, it imposes an international legal obligation.”
Later, in reply to a suggestion by Jeremy Corbyn that non-compliance would be damaging to the United Kingdom’s international reputation as an upholder of human rights, he said this:
“I hope I’ve made it clear that the United Kingdom has an enviable reputation in relation to human rights standards and adherence. One of the things I’ve discovered in my time as Attorney is that – I’ve quite a lot of foreign travel, including outside of Europe and most of it’s been connected with what I call the ‘rule of law’ agenda: trying to persuade countries which have poor rule of law records to put in place the necessary structures that human rights are respected, that the police don’t beat people up in prison cells, in police cells and that standards are raised. We’re at the forefront of that. I think if I were trying to identify an area of ‘soft power’ – benevolent soft power that the United Kingdom has to offer – I think it’s one of our great prizes. And inevitably, if we were to be in default of a judgment of the European Court of Human Rights, whilst clearly some people could put forward logical arguments as to why we should be, equally I have absolutely no doubt that it would be seen by other countries as a move away from our strict adherence to human rights law.” [my emphasis]
Not long afterwards, in an exchange during Prime Minister’s Questions in the House, David Cameron said this:
“The House of Commons has voted against prisoners having the vote. I do not want prisoners to have the vote, and they should not get the vote – I am very clear about that. If it helps to have another vote in Parliament on another resolution to make it absolutely clear and help put the legal position beyond doubt, I am happy to do that. But no one should be in any doubt: prisoners are not getting the vote under this Government” [Commons Hansard 24 Oct 2012 c 923].
Implications for compliance with Article 9
Apart from the obvious thought – “Do the PM and the Attorney ever talk to each other?” – the other question that might have occurred to anyone who has read this far is, “What has any of this to do with ‘law and religion’?”. To which my answer would be that human rights and adherence to the terms of the ECHR are indivisible. Once governments begin to pick and choose which rights to respect there is no telling which Article will become the object of their derision. (For a thoughtful analysis from a different perspective, see More shenanigans on prisoner votes on UKHRB.)
A possible (fictitious) scenario
Following is an extremely unlikely but not completely outlandish hypothetical scenario. A future UK Government bows to pressure from the Farm Animal Welfare Council and the British Veterinary Association and decides to ban the slaughter of animals without pre-stunning. Representatives of the Jewish and Islamic communities take the matter to Strasbourg; and the ECtHR decides that Cha’are Shalom ve Tsedek v France 27417/95  ECHR 351 (27 June 2000) can be distinguished on the facts (in Cha’are Shalom ve Tsedek the Court upheld what amounted to the Government’s refusal to license ultra-Orthodox glatt kosher slaughterers but stated, obiter, that ordinary ritual slaughter was protected by Article 9).
As a result, the UK Government loses – but Parliament refuses to repeal the ban. So what next? Does every observant Muslim and Jew then make a claim? And does HMG then default?
But can the UK simply walk away?
Further, even though the Attorney observes that “Governments can leave the Council of Europe if they choose to do so”, is departure a realistic option? Would withdrawing from the Council and the ECHR be in conflict with our EU obligations under the Treaty of Lisbon? Article 6(2) and (3) of that Treaty provides that the EU “shall accede” to the ECHR and that
“[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
Which presumably means either that membership of the Council of Europe is a necessary condition of membership of the EU or that members of the EU are bound by the terms of the ECHR whether or not they are members of the Council of Europe. In which case, withdrawing from the Council is either suicidal or pointless – except for those who would like to see the UK withdraw from the EU in any event.
The Attorney made an extremely telling point when he talked about the “rule of law” agenda and “soft power”. In short, what price the UK’s international reputation as role-model for human rights and the rule of law if we fail to comply with a clear ruling of the ECtHR?