This case involved Italy, not Britain – but nonetheless today’s judgment of the Grand Chamber of the European Court of Human Rights, about prisoner’s rights to vote, represents a small but significant victory for the British government. The Court has rowed back considerably from the reasoning in the Chamber judgment, which found Italy’s automatic ban on voting for prisoners in breach of Article 3 of Protocol 1 to the European Convention on Human Rights, and gives significantly more flexibility to the UK in the way it brings in prisoners’ votes.

It does not solve the government’s dilemma on prisoners’ votes – far from it. The UK must still allow at least some prisoners the vote, as required by the judgments in Hirst v UK, and Greens & MT v UK. But it does ease the difficulty. It vindicates at least to some extent the strategy of “dialogue” pursued in particular by the Attorney General Dominic Grieve, in which the government has sought to influence the court to recognise a greater margin of appreciation for national policymakers, and especially to respect elected legislatures like Parliament.

The Chamber’s reasoning in January 2011 amounted to a serious limitation of state’s room for policy maneouvre. Applying the earlier case of Frodl v Austria it said (para. 43 of the Chamber judgment; the translation from French is mine):

it is essential that the decision on disenfranchisement be taken by a judge and be appropriately reasoned

The breach of the Convention arose because (para 49)

the criterion laid down in the law was merely a temporal one in this case, as the applicant was deprived of the right to vote because of the length of his custodial sentence, irrespective of the offence committed or of any examination by the trial court of the nature and gravity of the offence (see Frodl v. Austria, cited above, §§ 34 and 35)

The big question today was whether the Grand Chamber would affirm the Frodl approach adopted by the Chamber, or whether it would ease the problems of the UK government by returning to the more flexible approach the Court took in its “pilot judgment” in Greens & MT v UK, in which it had stressed the room for policy choice available to the UK in removing what the Court has called the “blanket” ban on prisoner voting. This judgment is a clear return to the Greens & MT approach.

The Grand Chamber’s legal reasoning is at paragraphs 93-110. It criticises the reasoning in Frodl (para. 99):

That reasoning 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 (see paragraphs 85, 86 and 96 above). While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge. Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed.

and stresses at para. 102 the room allowed for national policymaking:

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. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1.

Interestingly the court notes at 105 an important fact – that the Italian system in question in this case is in one respect harsher than the British system condemned in Hirst. The Italian ban may only bite on those sentenced to three years, but it lasts even beyond the term of their sentence:

prisoners sentenced by the courts to three years’ imprisonment or more forfeit the right to vote temporarily, for five years, while those sentenced to five years or more, or to life imprisonment, permanently forfeit the right to vote

The Grand Chamber makes clear it realises that the Italian system does not apply automatically to all prisoners, and that the length of the ban is related to the length of imprisonment, and, therefore to the seriousness of the offence for which the prisoner is sentenced. This is an important point for the UK (para. 106):

In the Court’s opinion the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show the legislature’s 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. It is applied only in connection with certain offences against the State or the judicial system, or with offences which the courts consider to warrant a particularly harsh sentence, regard being had to the criteria listed in Articles 132 and 133 of the Criminal Code (see paragraph 37 above), including the offender’s personal situation, and also to the mitigating and aggravating circumstances. The measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more. Italian law also adjusts the duration of the measure to the sentence imposed and thus, by the same token, to the gravity of the offence: the disenfranchisement is for five years for sentences of three to five years and permanent for sentences of five years or more.

These factors lead the court to distinguish the case from Hirst (para. 108):

In the circumstances the Court cannot conclude that the Italian system has the general, automatic and indiscriminate character that led it, in the Hirst (no. 2) case, to find a violation of Article 3 of Protocol No. 1. In Italy there is no disenfranchisement in connection with minor offences or those which, although more serious in principle, do not attract sentences of three years’ imprisonment or more

And the ultimate possibility of restoration of the right to vote also makes a difference, in the court’s view (para. 109):

Furthermore, the Court cannot underestimate the fact that under Italian law it is possible for a convicted person who has been permanently deprived of the right to vote to recover that right. Three years after having finished serving his sentence, he can apply for rehabilitation

This is another important point for the UK since British prisoners automatically get back the right to vote not just at the expiry of their sentence, but on release – which is earlier.

The Grand Chamber’s conclusion is at para. 110:

Taking the above considerations into account, the Court finds that, in the circumstances of the present case, the restrictions imposed on the applicant’s right to vote did not “thwart the free expression of the people in the choice of the legislature”, and maintained “the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage” (see Hirst (no. 2) [GC], cited above, § 62). The margin of appreciation afforded to the respondent Government in this sphere has therefore not been overstepped.

There is a dissenting judgment from Judge Björgvinsson, whose main criticism of the majority is its inconsistency with Hirst. He rightly points out that the Italian legislation is in some ways harsher that British law:

The main difference between the two is that the Italian legislation deprives of voting rights only those who are sentenced to three years or more in prison, while the United Kingdom’s legislation deprives all persons sentenced to imprisonment, for the duration of their time in prison. While the Italian legislation may seem for this reason to be more lenient in comparison with that of the United Kingdom, it is stricter in the sense that it deprives prisoners of their right to vote beyond the duration of their prison sentence and, for a large group of prisoners, for life. Therefore, unlike the majority, I find that these differences are not sufficient to reach a different conclusion …

… I find the distinction made in this judgment between these two cases as a ground for justifying different conclusions to be unsatisfactory. The present judgment offers a very narrow interpretation of the Hirst judgment and in fact a retreat from the main arguments advanced therein. Regrettably 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.

I don’t agree with Björgvinsson’s legal conclusion, but I do think his dissent rightly points up the intellectual inconsistency of the majority. The only basis on which the Italian system can be seen as more liberal in its treatment of prisoners is that it does not take the vote from most prisoners serving under 3 years. Logically, all that remains of Hirst is that automatically banning prisoners from voting breaches the Convention if they are sentenced under 3 years. The majority ought either to have departed from Hirst, as the Attorney General invited them to; or to have made clear that its true rationale must now be understood as being that that the margin of appreciation does not permit states to ban shorter-term prisoners from voting. The majority’s failure to do this is a political fudge.

So: what does this mean for the government? It’s inconceivable that there’ll be any more significant movement from the court, so Hirst must now be implemented within six months of today’s judgment (i.e. by 23 November). Ministers will need to bring this issue back to Parliament.

But what’s also now clear is that their original compromise plan to give the vote to all prisoners serving less than four year sentences, and to give trial judges the power to ban even them from voting in appropriate individual cases, goes further than they need to in order to satisfy Strasbourg. Ministers can confidently propose to restate their plan based on a three-year cut off. In fact, I’d go further: because of the ways in which our own legislation is more generous than that of Italy, there’s a good chance that a voting ban taking effect on prisoners sentenced to two years will, if challenged, be upheld by the European Court.

A pretty good day for Dominic Grieve personally, then, and for the government. They can go back to Parliament arguing that they have persuaded the court to back down to a significant degree, and that the way is open to an acceptable, if not palatable, compromise.

The vital question now is what Parliament will make of that. Some MPs will want to continue to ignore the Hirst judgment and to defy the court. They’ll undoubtedly have their way if they command a majority, leaving the government with a diplomatic headache.

But the government could just conceivably get support for a solution if it at the same time it throws some red meat to its Conservative Eurosceptic backbenchers – which this judgment may give it some room to do. A bill giving the vote to prisoners serving under three years but extending the ban for those serving 3 years or more for a period beyond the expiry of their sentence – as the court has today ruled is permissible – would in a sense take from the court as well as giving to it. Parliament would be saying “Okay: you’ve ruled out our in many ways relatively liberal voting ban; fine. We’ll do just as you say, and bring in the in other ways more draconian ban you prefer.”

Could MPs be persuaded to vote for that? I wonder.