Prisoner Voting: Jonathan Fisher's Faulty Arguments – A Eurorights Blog
With the question of prisoner voting once more before the courts, this time the UK Supreme Court, more commentary was inevitable. In the law section of The Times (£) Jonathan Fisher QC argued that the UK should adopt a more robust approach to the long running saga of prisoner voting claiming that ‘the decision (? Hirst v UK (No.2)  ECHR 74025/01) is bad law and should not be enforced.’ Mr Fisher rehearsed the usual arguments about Parliamentary sovereignty and the alleged ability of the UK to ignore international court judgments. He failed to deal with the EU law aspects of the cases before the Supreme Court, no doubt because his arguments are fatally flawed in that context. Be that as it may, the essential elements of those arguments have been dealt with elsewhere, and will not be dwelt on further. Instead, what warrants further attention are the number of contentious points Mr Fisher makes on the European Court of Human Rights and its jurisprudence. These cannot be allowed to pass.
To begin with Mr Fisher argued that there:
is a strong case for saying that the council [of Europe] should be more concerned about systemic breaches of Strasbourg court rulings than an isolated case that involves a questionable ruling where an issue of domestic policy is at stake.
This seems to be a plea for ad hoc compliance with the European Court’s rulings. If a judgment, in the opinion of the defaulting state, involves a ‘questionable ruling’ on a matter of domestic policy – whatever this is – then the state should enjoy the benefit of clergy. The Council of Europe (CoE) should only be focused on systemic breaches. The problem with this argument is that states would adopt an arbitrary a la carte attitude to compliance: ultimately it would introduce into the the legal framework of the Convention the woodworm of realpolitik which would slowly and inevitably rot the whole system.
Mr Fisher then went on:
The Government should embark on a campaign to persuade its European counterparts that the Strasbourg court has exceeded its jurisdiction, by converting the right to free elections into a right to universal suffrage — a moment of judicial creativity that far exceeds the court’s convention remit.
There are two points to be made here. First, how many other members of the CoE would be amenable to persuasion? Given that only nine members of the CoE have a blanket ban, and the trend as in Ireland is towards reform, is Mr Fisher seriously suggesting that the other thirty-eight countries be encouraged to reverse their position? Second, the interpretation of Article 3 of Protocol 1 is not as he suggested an act of judicial creativity that ‘that far exceeds the court’s convention remit.’
The importance of democracy to the application and interpretation of the ECHR is well established. In the text of the treaty itself the importance of democracy is stressed in the preamble. Here the signatories to the ECHR reaffirmed their belief that fundamental freedoms are best maintained by ‘an effective political democracy.’ Indeed, in the United Communist Party v Turkey  ECHR 133/1996/752/951 the European Court distilled the essence of democracy employed in the Convention:
Democracy is without doubt a fundamental feature of the European public order. That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court … has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society. … Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it … The Court has identified certain provisions of the Convention as being characteristic of democratic society [thus] in Mathieu-Mohin and Clerfayt v Belgium  ECHR 9267/81 it noted the prime importance of Article 3 of Protocol No. 1, which enshrines a characteristic principle of an effective political democracy. (para 45)
Of course, the ECHR was established in part to be a regional means of giving effect to the Universal Declaration, which is also referenced in the preamble. The Universal Declaration refers to elections being held ‘by universal and equal suffrage.” (Article 21(3)). Furthermore, the Convention is shot through with the idea of a democratic society. Thus where the state seeks to restrict Convention rights or freedoms it can only do so when the restrictions are compatible with a democratic society and its values: ‘The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”.’ Handyside v UK  ECHR 5493/72, para 49.
True Article 3 of Protocol 1 does not mention a universal franchise. But how can there be an effective political democracy without it? The universal franchise is a conditional precedent for an effective political democracy. It is thus hardly surprising that the European Court held that that Article 3 of Protocol 1 includes a guarantee of individual rights, namely the right to vote and to stand for election. (Hirst, para 57) The universal franchise is a basic constituent principle of an effective political democracy governed by the rule of law. (Hirst, paras 58-59). Like the majority of Convention rights the right to vote is not absolute. It may be limited on public policy grounds providing, amongst other things, that the limit is proportionate. However, a blanket ban on the voting rights of a group of people is, by definition, disproportionate.
Finally Mr Fisher also argued that:
The Council of Europe has often made clear that the Strasbourg court should give countries a wide margin of appreciation, recognising that domestic courts are better placed than an international one to evaluate local needs and circumstances.
Again this is a misreading of the jurisprudence. The European Court already recognises the importance of subsidiarity. Indeed, subsidiarity is a recurring theme of the jurisprudence. In the landmark case of Handyside the Court outlined subsidiarity’s role in the protection of human rights:
The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted. (para, 48)
And even where those remedies have been exhausted in the contracting state the European Court may in some applications already apply a margin of appreciation giving states greater room for manoeuvre when justifying restrictions. This does not need to be ‘wide’ as Mr Fisher suggests. It depends, as the European Court already recognises, on the context of the application. Thus in cases such as those involving the protection of morals or involving social concepts the Court is more tolerant of the decisions taken by states. Perhaps too tolerant. But in other cases the Court will grant a narrow margin; for example in cases where there is a European consensus or common practice (such as on prisoner voting), in cases involving rights connected to democracy and finally where the text of the ECHR indicates that this would be inappropriate. Thus to claim that the European Court should be even more deferential to states fails to take into account the current position where the court is hardly the expansionist institution its critics claim.