Prisoners’ votes: another dodgy ruling from the European Court

The European Court of Human Rights has ruled today that an Italian prisoner’s rights were breached where he was sentenced to prison for life, and as a result lost the right to vote indefinitely. The ECtHR’s ruling in Scoppola v Italy (the judgment is only available in French for the moment, I’m afraid) will cause concern among ministers in London – and for good reason. The ruling is legally questionable. But if the judges in Strasbourg do maintain this line in future, their new “four year cut-off” policy may be indefensible in the courts, and they could have to make more concessions.

I last wrote about this issue before Christmas, when the government announced its proposed “four year rule”: prisoners serving less than four years will be entitled to vote, while those serving four years or more will not. That stance was clearly a calculated risk by ministers: following the key ruling in Hirst v UK in 2005, the judgment in Frodl v Austria went far further, strongly suggested the UK would have to give almost all prisoners the vote, and that any disenfranchisement could only relate to a very narrow category of prisoners and be imposed by the sentencing judge in an individual case. On that approach, no “bright line” policy based on four years, ten years or even life imprisonment would be permitted. So the government must have been mightily relieved when in its “pilot judgment” in Greens & MT v UK, the court appeared to step back from Frodl (paras. 113-114):

it was recently held in Frodl … that … any decision on disenfranchisement should be taken by a judge and there must be a link between the offence committed and issues relating to elections and democratic institutions… However… As the Court emphasised in Hirst, there are numerous ways of organising and running electoral systems… The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result … the role of the domestic policy-maker should be given special weight ……

the Court considers that a wide range of policy alternatives are available to the Government in the present context…. Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals.

That judgment re-opened the door to the kind of “bright lines” approach the government then decided to take, based on a four-year cut-off.

Scoppola, though, appears to take the Court’s thinking straight back to Frodl. In this case, Italian law deprives prisoners of the vote automatically if they are sentenced to three years imprisonment or more – a system closely resembling the UK government’s current policy. The Strasbourg judges have concluded that breaches the right to free elections not because three years is too low, but, just as in Frodl, because any such generalised cut-off is impermissible (para. 43; the translation is mine):

The Court finally recalls that in its recent case law in applying the criteria established in the case of Hirst v. United Kingdom (No. 2), it is essential that the decision on disenfranchisement be taken by a judge and be appropriately reasoned.

There’s no cause for immediate panic in Whitehall. As a matter of international law, the UK is entitled to stand on Hirst and Greens, and see if its new policy survives any challenge in the courts. But there is clearly a shocking inconsistency in the approaches of the judges in Strasbourg, the decision arrived at here unanimously being based on a clearly different, more formalistic and intrusive approach from that also taken unanimously in the more politically sensible Greens judgment.

No wonder senior MPs are concerned about this. Jack Straw and David Davis are being unrealistic if they think Hirst and Greens can be ignored or overruled, even by Parliament. But judges can take unreasonable stands too, and in Frodl and now Scoppola, some Strasbourg judges have gone far too far in laying down in precise detail what national policies must be.