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Britain’s got its way on prisoners’ votes – so why withdraw from the ECHR?

Diamond Geezer | Creative Commons

In yesterday’s judgment on 1,015 “legacy” applications, the European Court of Human Rights ruled once again that the legislative bar on prisoners’ voting breaches article 3 of the first protocol to the European Convention. That result was predictable given the Court’s case law on votes for prisoners.

But more importantly, the Court awarded none of these successful applicants a penny in damages; and not a penny in costs, either. The Court has drawn a line under its dispute with the UK, and will do nothing further to raise the stakes.

We’ve known for a long time that there were hundreds if not thousands of applications by prisoners, piggy-backing on John Hirst’s successful complaint over ten years ago now. These cases were stayed for a time, following the Greens & MT “pilot judgment” against the UK in 2010, in which the Court said explicitly that UK law must change. But they were later revived, Parliament still not having legislated.

The fact that so many claims have been outstanding led many in the media to speculate about the huge sums we might have to pay, £160 million being mentioned at one stage (and debunked by Adam Wagner at the UK Human Rights Blog). These sums were plucked out of the air, often combined with the factoid that the Court could fine the UK – which it can’t. What it can do is compensate applicants (a very different matter, since it allows for no punitive element) and award them legal costs. I think the figures bandied about may have originated from a fag-packet reckoning by John Hirst himself, though I don’t complain against him: he was campaigning, so it was fair enough to argue about how much this “could” cost.

But the total bill from these 1000+ cases amounts to £0.00. Fears of the fiscal impact of this dispute were exaggerated. George Osborne and the Office for Budget Responsibility need not revise their deficit forecasts.

Yes, some cases remain, including more that relate to European elections and some about the Scottish referendum. But it’s hard to see how prisoners can hope to be awarded damages or costs, even if they win. The same must go for any leftover claims about Westminster Parliament votes.

In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it.

Abu Qatada is abroad; our courts can impose whole-life orders; and Britain’s continuing failure to give prisoners the vote is cost-free. It’s now simply a diplomatic issue for the Council of Europe’s committee of ministers, who must know this is not the worst case of non-implementation, and are unlikely to take drastic action.

The “dialogue” approach pursued by Dominic Grieve when he was Attorney General and supported by an increasing number of our own judges in recent years, has succeeded. British pushback and the 2012 Brighton reforms have changed the weather in Strasbourg, where the Court is showing a new restraint – arguably excessive restraint in some cases, leading to confused rulings like the one about the niqab ban in France. But it’s a restraint that will be welcome in Britain.

What should we make now, then, of Conservative plans to make Strasbourg judgments “merely advisory” or else pull out of the human rights convention entirely? Those plans are yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.

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  1. All very soothing except it is about three months before a General Election. No-one accuses the Strasbourg authorities of being stupid. I would wager that their tone will change when there is a 5-year buffer zone. That being written, I have always argued that the real danger to democracy comes from the UK judges as, unlike those in Strasbourg, they cannot be ignored when they get it ‘wrong’, and they are challenging Parliament’s authority to correct them (see Messrs Hope and Steyn in the R (Jackson) case).

  2. I suspect that the Conservative Party are too Eurosceptic to want to withdraw their risible plans. Time will tell.

    The message of course is that the UK “got away” with this and that is not a good message to have out there.

  3. The court has explicitly signaled that it can be manipulated by the undue influence of a human rights abusing state – the UK.

    I agree with Obiter – the UK got away with it.

    This yes- court had better watch out – if the people who normally defend it, like myself, see that it will yield to the interference of the UK and other busybody law-breaking states, then we may end up asking – what is the point of it?

  4. David,

    Your point about the “real danger” is interesting. I wouldn’t see judges as a “danger” in that sense but I do think Conservatives should think twice and three times before they elevate a “British Bill of Rights” to their preferred solution here. They may end up with more confident, more determined and less malleable judges restricting their policies than they have now.

  5. Tim,

    I see your point, and I think I’d strongly agree – except that I do feel the ECtHR has got into a habit of stepping beyond its proper role in some cases (Abu Qatada is not an example of that; but prison votes very much is) and does or at least did need some reining in.

    Yes, there’s a danger if the court loses all bite. But I think recently the bigger danger has been of its losing legitimacy (and coherence, over prison votes).

  6. @ Tim.
    “The court has explicitly signaled that it can be manipulated by the undue influence of a human rights abusing state – the UK.”
    Couldn’t an alternative interpretation be that the Court is tacitly acknowledging that it got Hirst wrong? But just as Obiter J (no relation) feels that the Conservatives may be unable to resile from their policy paper, so perhaps the ECtHR cannot be seen to acknowledge that, in Hirst, the Court may have misinterpreted the intrinisic meaning of Art 3 of Protocal No 1.

  7. I think all is well said but reasonability should be allowedto play a roll by allowing a court of competent jurisdiction to decide.

  8. The whole thing is designed to confuse anyone who is not legally trained. “Competences” is a very vague meaning, but I think it means they have the last say in policy making. The EU has many weasley words have more than 2 meanings or have more gravity than you realize.


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    […] Head of Legal blog, Carl Gardner takes a slightly different tack, as encapsulated in his title, Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? He points out that, partly thanks to the persuasive representations of former Attorney General […]