European Human Rights Law Review2011

Dialogue, diplomacy and defiance: prisoners' voting rights at home and inStrasbourgSophie 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.3European 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 2005decision of the European Court of Human Rights in Hirst v United Kingdom (No.2) that thedisenfranchisement of prisoners pursuant to s.3 of the Representation of the People Act 1983 violatesart.3 of Protocol 1 to the European Convention. The author assesses the width of the margin ofappreciation left to the UK Government further to evolving case law in Strasbourg and analyses theGovernment'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, andsquarely rejected, John Hirst's claim for a declaration of incompatibility in relation to the restrictions onthe voting rights of prisoners contained in s.3 of the Representation of the People Act 1983.1 OnOctober 6, 2005, the Grand Chamber of the European Court of Human Rights on Mr Hirst'sapplication held that the disenfranchising provision violates art.3 of Protocol 1 to the EuropeanConvention. The political consequences of the Grand Chamber decision are still unravelling. Adecade after the determination of the domestic court, Mr Hirst's case has caused some Members ofParliament variously to call for the United Kingdom to disregard its obligations under art.46 of theEuropean Convention to abide by the judgments of the European Court to which it is a party, to repealthe 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 thejustifications for denying prisoners the vote in a modern democratic society?), constitutional analysis(has the Strasbourg Court assumed jurisdiction over matters in respect of which nationalgovernments have not relinquished sovereignty?) and political diplomacy (can the European Courtthrough the operations of the Council of Ministers be persuaded to mend its “activist” ways?). Thesequestions and others have received noteworthy attention elsewhere.2 The aim of this article is toreview the European and domestic developments following the decision in Hirst while addressing tworelated questions. First, what is the width of the margin of appreciation the European Court has left tothe Government to determine the extent of prisoner enfranchisement? Secondly, what role do andshould Parliament and the domestic courts play in shaping Strasbourg's assessment of the margin ofappreciation?

*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 hissentence 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 defaultin non-compliance with a sentence such as payment of a fine4 and, since the passage of theRepresentation 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 thelegislature.”

The Grand Chamber has interpreted ECHR art.3 Protocol 1 as conferring individual suffrage rightsand has held that the undertaking given by the High Contracting Parties obliges them to take positivesteps 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.3Protocol 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.3Protocol 1.8 The Court applied its familiar form of analysis to the question of whether the very essenceof suffrage rights was impaired: it examined first whether the disenfranchisement regime of the 1983Act pursued a legitimate aim and secondly whether the measures adopted were proportionate to thataim.

The Government's aims were stated to be the prevention of crime, enhancement of civic responsibilityand promotion of respect for the rule of law. These were accepted as legitimate. While alluding todoubts about whether disenfranchisement could in practice promote or achieve these aims, themajority held that inefficacy was not a reason “to exclude these aims as untenable or incompatible perse ”.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 theacceptable bounds of the margin of appreciation “however wide that margin might be”.10 Section 3 ofthe 1983 Act was criticised for being a “blunt instrument” which imposed a “blanket restriction” and assuch did not reflect “any direct link between the facts of any individual case and the removal of theright to vote”.11

The violation of ECHR art.3 Protocol 1 was found by 12 votes to 5. The British Judge, Sir NicholasBratza, voted with the majority.

*E.H.R.L.R. 245 In a dissenting opinion, judges including the then president of the Court (JudgeWildhaber) and the current president (Judge Costa) complained that the majority's affirmation of thebreadth of the margin of appreciation could not be reconciled with their finding of a violation. Theypointed out that other “restrictions of a general character” such as conditions of residence, age andnationality had been held to be proportionate interferences with the Convention's implied suffragerights.12 In their view, the majority finding was based on a “dynamic and evolutive” interpretation of theConvention which was not rooted in changing conditions in society.13 Presciently, they highlighted therisk in these circumstances that the Court could be accused of assuming legislative functions andwarned 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 toimplement to satisfy the requirements of the Convention, emphasising instead that it is “primarily forthe State concerned to choose […] the means to be used in its domestic legal order in order todischarge its obligation under Article 46 of the Convention”.15 This course was followed despite theGovernment 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 benon-prescriptive. First, three Chamber level decisions of the European Court have each separatelyinterpreted the “Hirst test”, giving rise to inconsistent messages about the requirements of ECHR art.3Protocol 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 UnitedKingdom 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 Actwhich disenfranchises prisoners sentenced to a term of imprisonment of one year or more foroffences committed with intent. The sentencing judge has power to suspend the sanction ofdisenfranchisement.20 In the domestic proceedings the Austrian Constitutional Court was satisfied thatthe provisions did not violate the requirements of ECHR art.3 Protocol 1 as set out in Hirst since theydid not enact a blanket forfeiture of the right to vote and they incorporated a degree of judicialdiscretion. Adjudicating upon Mr Frodl's application, the First Section of the European Courtdisagreed.

The First Section construed the requirements of ECHR art.3 Protocol 1 further to the decision in Hirstin two ways. The first was that “disenfranchisement may only be envisaged for a rather narrowlydefined group of offenders serving a lengthy term of imprisonment; there should be a direct linkbetween the facts on which a conviction is based and the sanction of disenfranchisement; and such ameasure should preferably be imposed not by operation of a law but by the decision of a judgefollowing judicial proceedings”.21 The second elevated the preference for judicial disenfranchisementinto an obligation:

*E.H.R.L.R. 246 “… under the Hirst test, besides ruling out automatic and blanket restrictions it is anessential element that the decision on disenfranchisement should be taken by a judge, taking intoaccount the particular circumstances, and that there must be a link between the offence committedand issues relating to elections and democratic institutions”.22

The judgment in Frodl became final on October 4, 2010 upon the refusal of the AustrianGovernment's request for referral of the decision to the Grand Chamber. The refusal of the referralrequest signified that, in the opinion of a panel of five judges,23 the case raised no serious questionaffecting the interpretation or application of ECHR art.3 Protocol 1, and no serious issue of generalimportance.24

Greens v United Kingdom

In Greens the Court (Fourth Section) adjudicated again on s.3 of the 1983 Act which remainedunaltered 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 itselffrom the Second Section's reasoning in Frodl. While not expressly contradicting Frodl, the FourthSection chose to emphasise the wide margin of appreciation which the Grand Chamber in Hirst hadpurported to accord to Member States in this area, the Grand Chamber's refusal to specify themeasures which the UK Government should take to comply, and the subsidiary role of the EuropeanCourt.25

The Fourth Section expressed its regret that the United Kingdom had failed to take steps to complywith the judgment in Hirst, a failure which it noted ran contrary to the UK's art.46 obligations. Itsjudgment directed the Government to introduce amending legislation within six months of its judgmentbecoming final and to enact the legislation within a period to be determined by the Committee ofMinisters.26 Adopting a pilot judgment procedure27 (the first time such a procedure has been usedagainst the United Kingdom), it declared that it would suspend examination of the 2,500 comparableprisoner voting complaints which it had received pending compliance by the Government with theCourt'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 listunder 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 expresslycontradict it. It told the Government that the choice of legislation was theirs, but emphasised that itretained supervisory jurisdiction to assess the Convention compatibility of any amending legislation. Itmade 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 tothe 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 Codeand art.2 of Presidential Decree no.223 of March 20, 1967, which together disenfranchise prisonerssentenced to three years' imprisonment or more.

The judgment recited the dicta in Hirst that a blanket ban falls outside any acceptable margin ofappreciation, however wide that margin might be. Referring to the decision in Frodl (but not to thedecision in Greens ), it reiterated the Second Section's interpretation of the Hirst test, stating that thedecision to disenfranchise must be made by a judge and must be duly reasoned.30 It found a violationof ECHR art.3 Protocol 1 on the basis that the disenfranchisement of prisoners under Italian lawautomatically 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 franchiseonly 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 incrafting the legislative framework under which the judge will operate.

However, there is both internal ambiguity within the judgment in Frodl (is disenfranchisement byjudicial determination obligatory or merely desirable under ECHR art.3 Protocol 1?) and ambiguityarising from the restatement in Greens that a wide range of policy alternatives are available to theGovernment. The Government is only obliged to follow the decisions to which it is a party. It needimplement only the decisions in Greens and Hirst, which demand a legislative change but ostensiblyleave 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 thatany legislative change that fails to adhere to the prisoner enfranchisement regime advanced in Frodlwill be open to further challenge. The Government may find itself in a parallel position to the CanadianGovernment in the Suave voting litigation. The Canadian Supreme Court ruled that a complete banon prisoner voting was unconstitutional in Suave No.1. 31 In response to that ruling, the Governmentamended the legislation so as to allow prisoners serving terms of less than two years to vote, only tohave this declared unconstitutional in Suave No.2 32 (a judgment which had considerable influence onthe views of the majority in Hirst ). To avoid recurrent litigation, in any future challenge the politicalsensitivity shown by the Second Section in Greens must give way to clarification of the specificrequirements 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 notdisproportionate, and that is the point at which, as it seems to me, it is appropriate for this Court todefer to the legislature”.33 The Grand Chamber in Hirst noted the absence of judicial assessment ofproportionality and commented upon the perceived inadequacies of the Parliamentary debate whichhad accompanied the passage of domestic disenfranchising legislation, stating “there is no evidencethat Parliament has ever sought to weigh the competing interests or to assess the proportionality of ablanket ban…it cannot be said that there *E.H.R.L.R. 248 was any substantive debate”.34 The Court'sjudgment makes clear that the level of debate and degree of judicial consideration facilitated itsconclusion that the blanket ban on prisoner voting fell outside the acceptable bounds of the margin ofappreciation.35

Normative evaluations of Parliamentary debates are a constitutional anathema in the domesticcontext. The suggestion that such evaluations may form part of a proportionality assessment wasemphatically rejected by the House of Lords in Wilson v First County Trust Ltd (No.2), 36 in which LordNicholls 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”.37That an evaluation of Parliamentary debate may undermine the division between judicial andlegislative functions was recognised both by the dissenting judges in Hirst and by Judges Tulkens andZagrebelsky, who cautioned in a separate concurring judgment that “this is an area in which twosources of legitimacy meet, the Court on the one hand and the national Parliament on the other. Thisis 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 ofthis slippery terrain. The Grand Chamber having called attention to the potential which Parliamentarydebate and domestic judicial reasoning have to moderate its adjudications, Parliament in its referralrequest 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 thejudgment in Hirst. The most significant of these are Smith v Scott, 39 a decision of the ScottishRegistration Appeal Court, R. (on the application of Chester) v Secretary of State for Justice, 40 andTovey v Ministry of Justice. 41

Smith was the first occasion on which the courts considered the effect of Hirst on domestic law.42 Thesubmission 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. Theclaimant's suggestion was that the words “to the effect that any ban on prisoner voting would apply atthe 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 ownaccount” in part because of the “wide range of policy alternatives” that Hirst left open to theGovernment in amending s.3 of the 1983 Act.43 However, while HRA s.3(1) could not legitimately beemployed, the decision in Hirst (which the Court was told was “fully accepted” by the Secretary ofState 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 wasagain invited to read down s.3 of the 1983 Act pursuant to the interpretive obligation in HRA s.3 or inthe alternative to make a declaration of incompatibility. The claimant submitted that Frodl had reducedthe policy alternatives available to the Government in introducing Convention compliant legislationand mandated judicial determination of prisoner disenfranchisement. This steer from Strasbourg, itwas argued, justified the reading down of s.3 of the 1983 Act in the manner rejected by the Court inSmith or, in the *E.H.R.L.R. 249 alternative, gave a new purpose to a declaration of incompatibility. Arepeat declaration of incompatibility was a mechanism by which the domestic court could mediatebetween Strasbourg and Westminster, making clear to the Government the content of amendinglegislation demanded by the European Court. It would also reflect disapproval of the Government'sdelay 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”.46There 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 judicialdetermination was necessarily required, and it would be inappropriate for the court to offer “anadvisory opinion as to the legally proper content of forthcoming legislation” in the light of the “deepphilosophical 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 theGovernment 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. 49Mr Justice Langstaff rejected the argument that a cause of action arose in domestic law from thefailure of the Government to amend the 1983 Act. This was precluded by HRA s.6(6), which providesthat the failure to introduce or enact legislation does not constitute an unlawful act. The delay in anyevent was unlikely to sound in an award of damages under the HRA since the European Court haddeclined to make monetary awards for violations of ECHR art.3 Protocol 1. Unsurprisingly, LangstaffJ. also rejected an argument that the interpretative obligation in HRA s.3 required the phrase “legallyincapable of voting” in the 1983 Act to be read as “legally capable”.50 He refused the claimant'srequest 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) ofthe executive. The (then New Labour) Government's initial response to the judgment in Hirst was toembark upon a course of consultations: a first consultation paper was issued in 2006;52 a second in2009.53 This response suggested at best careful thought and at worst deliberate procrastination.54Save for Parliamentary questions highlighting the Government's dilatory response,55 there was littlelegislative consideration of the judgment in Hirst in this period.

The Greens judgment prompted more rapid developments. On December 20, 2010 Mark Harper, theCoalition Government's Minister for Political and Constitutional Reform, issued a written ministerialstatement which announced that prisoners serving terms of four years or less would, subject todiscretionary judicial disqualification, be given voting rights. No timetable was given for introducing theproposed 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 thePolitical and *E.H.R.L.R. 250 Constitutional Reform Committee heard evidence about the UnitedKingdom's obligations arising under ECHR art.3 Protocol 1 in the light of the European Court's variousrulings.56 On February 10, 2011 the House of Commons held a debate which made clear Parliament'sdislike of the Government's proposal for reform. More significantly, the debate was concerned with theposition 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 inHirst v the United Kingdom in which it held that there has been no substantive debate by members ofthe legislature on the continued justification for maintaining a general restriction on the right ofprisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislativedecisions of this nature should be a matter for democratically-elected lawmakers; and supports thecurrent 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. Backbenchers 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 underinternational law and in furtherance of the principle of the rule of law to abide by the European Court'sjudgments. On the other hand, other Parliamentarians seized upon the opportunity to proclaim theirsovereignty over the European Court. Sitting between these conceptions of the authority ofWestminster and of Strasbourg was a self-conscious awareness that the debate might be a forumthrough which Parliament could influence the opinions of the judges in Strasbourg. TheAttorney-General was explicit on this point:

“The Grand Chamber in the Hirst case commented on the lack of any substantive debate inParliament. It must be the case, therefore, that the existence of a substantive debate […] will behelpful to the process of finding a way through the problem that is exercising many Members of thisHouse […] In order for the views of this House to be helpful, we need to demonstrate that we areengaging with the concerns of the Court. Through a dialogue about what the House considers to beproper and reasonable in respect of prisoner voting, we have to see whether we can bring our weightto bear as a legislature in the development of the jurisprudence of the Court […] Despite thedifficulties that the House might face, we have a real opportunity, through debate, to shape thedialogue 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 thedebate that a blanket ban is reasonable and proportionate, and on the views of the Court in Chesterthat reasonable people may legitimately hold disparate views on the question of prisoners' suffrage. Itwas an attempt to reverse the flow of judicial thinking in Strasbourg by inviting the Court to attachweight to the views of Parliament and the judiciary in circumstances where, perhaps uniquely, at leastthe 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 domesticcourts and Parliament into sharp focus. Its success depended upon a “dialogic” model of thistriangular relationship. Dialogic constitutional theory holds (broadly) that in some contexts thejudiciary 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 GrandChamber's indication, given in Hirst that the margin of appreciation can be modified by debate inParliament made the government hopeful that dialogue might be possible. The Court's subsequentrefusal of the referral request in Greens revealed its unwillingness, in the event, to interact withWestminster 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 thereferral 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 ofthe 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 riskundermining the authority of its judgments. While the Court is not bound by its own decisions, pastoccasions on which the ratio of its judgments have been overturned have reflected a rise in theminimum level of protection which the Court has considered is bestowed by a Convention right. Itwould have been an unusual and strained use of the Court's “living instrument” doctrine to haveregressed the standards of suffrage rights on the basis that recent Parliamentary debate reflectedchanging conditions in, or a new consensus between, contracting states. There would have been aclear danger of encouraging states to deploy ex post facto rationalisations of entrenched positions inan attempt to avoid findings of Convention violations.

While the European Court has shunned dialogue in the context of a review of Hirst, proponents ofdialogue theory will note Laws L.J.'s comments in Chester concerning the evolving use of statementsof incompatibility in “a strategic partnership between the branches of government”,60 which point to adialogic conception of domestic legislative-judicial relations. Proponents may also argue that thedecision in Greens, which invites the Government to put forward legislative proposals of unspecifiedform, allows the Parliament to “converse” with the European Court as to what disenfranchisementmeasures other than a blanket ban are proportionate with ECHR art.3 Protocol 1. In response it mightbe pointed out that, whatever the future role of declarations of incompatibility, the declaration madeover three years ago in Smith played only a minor part in prompting Parliament's recent debate. In theinternational context it remains to be seen what influence Parliamentary debate may have on theEuropean Court's deliberations if it is required in the future to adjudicate upon a challenge to anylegislation which amends or repeals s.3 of the 1983 Act. It is possible that views expressed inParliament will help persuade the Court to judge as permissible relatively far reaching restrictions onprisoners' voting rights. For the moment however, opponents of dialogue theory will be emboldened intheir belief that “the European Court of Human Rights does not perceive itself to be participating inany form of democratic dialogue with the legislature […] nor could it sensibly do so […] [it] providesthe 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 Hirstraised a “serious question of general importance” under the Convention. In the light of the widerdebate within the United Kingdom concerning relations with Strasbourg and the appropriate content offundamental rights--well illustrated by the recent establishment of a commission to investigate thecase for a UK Bill of Rights--the Court might have been expected to have adopted a cautiousapproach. It could, for instance, have allowed the referral request without conceding that thejudgment 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 Frodland Scopolla on the other. An opportunity to clarify the requirements of ECHR art.3 Protocol 1 hasbeen 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 inprisoner enfranchisement. It is caught between the competing sources of legitimacy, Parliament andthe European Court. While the European Court offers the government no option save to comply withthe requirements of Hirst, it is unlikely that, within the six months afforded to the Government tointroduce 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, onthe second question, M. Pinto-Duschinsky, “Bringing Rights Back Home, Making Human Rights Compatible with ParliamentaryDemocracy 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 anaccidental consequence of the residence requirements in the 1983 Act (see Home Office Working Party on Electoral Procedures, October1999, 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 repetitivecomplaints that highlight the existence of structural or systemic difficulties in the state concerned” (M. O'Boyle “On Reforming theOperation 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 complaintwould be treated the same way [114]. At the beginning of February 2011, 3,500 claims had been received by the Court (House ofCommons 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] 2A.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, thegovernment 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 theEuropean 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 resolutionCM/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 Act1998” (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 athttps://wcd.coe.int/wcd/ViewDoc.jsp?Ref=DD…2011%29139&Language=lanEnglish&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864[Accessed May 6, 2011].

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