You are here

Attorney General to argue in person that prisoners should not get vote

25 October 2011

The Attorney General, Dominic Grieve, has said that he will go to the European Court of Human Rights in person to argue that the UK should be allowed to continue its practice of denying prisoners the vote.

The UK government takes over the chairmanship of the Council of Europe next month, which Grieve said was a “once in a generation opportunity” to reform the Strasbourg court.

In a speech at Lincoln’s Inn last night he said there was no question of the UK withdrawing from the Convention, but the principle of subsidiarity needed to be strengthened.

Grieve said the principle meant that member states should have the primary responsibility for guaranteeing and protecting human rights at a national level.

“The principle is well-established and has been recognised by the Council of Europe in both the Interlaken and Izmir declarations on reform of the court, as well as in the case law of the Strasbourg court,” he said.

However, the Attorney General said the ECtHR did not always “follow its own advice”.

He went on: “Prisoner voting is a good example. On the one hand the court says there is a wide margin of appreciation afforded to member states to decide on the enfranchisement of prisoners, recognising that there are numerous ways to organise electoral systems reflecting the differing political traditions across Europe.

“But on the other hand, as we can see in cases such as Frodl v Austria and Scoppola v Italy, the court seeks to set down specific rules about the circumstances in which prisoners can be disenfranchised.

“It is no wonder – given these conflicting messages – that it is difficult to design a system in the UK which is compatible with the Convention rights.”

Grieve said the UK was intervening in the Scoppola case and he would personally go to Strasbourg to plead the matter.

He said that the principle of subsidiarity required the court to accept that, on issues of social policy such as prisoner voting “where strong, opposing reasonable views may be held and where parliament has fully debated the issue”, the decision on the “appropriate system of disenfranchisement” should be for parliament.

Grieve said the ECtHR should not interfere with that decision “unless it is manifestly without reasonable foundation”.

He described the Human Rights Act as a “complex of piece of legislation” and said it was not clear exactly what parliament intended by requiring the national courts to “take into account” Strasbourg judgments.

Referring to the commission set up by the government to investigate the creation of a UK Bill of Rights, Grieve said a “better definition” of the relationship between the national courts and Strasbourg was needed.

“Had we wished, in 1998 the UK could have made it clear that the national courts must follow the jurisprudence of the international court and adopt an approach similar to our implementation of EU law under the European Communities Act 1972 and allow the courts to strike down primary legislation. We specifically chose not to do so.

“If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently or that is has misunderstood national law or the impact of its decisions on the UK legal system.

“This is just a very brief discussion of one section of the Human Rights Act. It shows that the task faced by the commission is far from straightforward.”

The Attorney General added that the deadline for responses to the commission’s discussion paper was 11 November.

Categorised in:

Police & Prisons