The Grand Chamber (17 judges) of the European Court of Human Rights has given its judgment today in the case of Hirst v. The United Kingdom (no. 2) (appl. 74025/01), on appeal from a Chamber jugment dating from March 30 2004 and confirming that earlier decision. The Court holds that a blanket denial of voting rights to prisoners cannot satisfy the proportionality requirement inherent in art. 3 of the First Protocol to the Convention which reads:
“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 the legislature.”
The Chamber had ruled earlier that, although the case concerned an area in which a wide margin of appreciation should be given to national authorities, an absolute ban on voting by any serving prisoner could not fall within such a margin. Especially relevant to the Court was the fact that there was no evidence that the UK legislature had at any time sought to weigh the competing interests involved or to assess the proportionality of the ban. The Chamber had also attached importance to two rulings from other jurisdictions - Canada and South Africa - upholding prisoners' rights.
This use of comparative law was criticised by the UK government on the grounds that the Canadian decision was decided by a narrow 5-4 majority within a very different institutional context and the South African decision concerned different kinds of obstacles to voting. The UK government also laid stress on the fact that among the countries party to the Convention, there was no consensus as to how to deal with this issue (13 countries, a bit less than 1/3rd of the total, apparently have bans, some of which go further than the UK rules).
The Grand Chamber again mentions as important the apparent absence of a proportionality assessment in the UK Legislature. Of this argument, a powerful joint dissenting opinion of five judges including the Court's president, says that it is not for the Court to dictate how national legislatures should deliberate on proposed laws. It must be assumed, according to the dissenters, that the Election Law at issue "reflects political, social and cultural values in the United Kingdom".
With regard to the lack of consensus among Convention States, the Grand Chamber holds that only a minority of Contracting States have laws similar to those in the UK and that in any event the absence of consensus cannot be determinative of the issue. It concludes by holding that a "general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1".
An important and far reaching judgment by any standard. Given such a sparse-worded basic provision (art. 3 basically only says Member States should organise free elections), such a politically sensitive issue, and the noted clear absence of consensus among Convention States, one could argue that the Court should be highly deferential in this area. Whether or not one agrees with the outcome, two aspects of the Court's decision seem especially vulnerable to critique. (1) The use of comparative reasoning seems suspect. The Court only mentions two favourable third-country judgments in face of an important absence of consensus among Member States. No attempt is made to form a comprehensive survey of rulings and laws (!) in and outside Europe. (2) The argument based on the absence of proportionality analysis in the UK parliament. Here the fallacy of "false conflicts", well known in the field of private international law, comes to mind. This fallacy shows that the fact that an issue is not explicitly legislated for (or even debated upon) does not mean that the country involved does not have an interest in the matter (or a position on the issue). In any event, the Court's consistent emphasis on the need for national authorities to internalise Convention requirements, including proportionality analysis of rights-infringing measures, is, generally speaking, very valuable. However, and as the dissenters argue, to require a national parliament to debate issues of the kind involved in a certain way, according to a certain model, seems to go very far indeed.
Added 14/10/2005: Have a look also at the post by Roger Alford on Opinio Juris