Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill

Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents

4 Parliamentary sovereignty and the European Court of Human Rights

Introduction

67. The previous Government's initial response to the judgment of the European Court of Human Rights in the Hirst case was summarised by Jack Straw in his autobiography, Last Man Standing, in this way:

68. These delays meant that no firm steps were taken until after the 2010 election, when Mr Straw, along with Mr David Davis, made use of the new mechanism of the Backbench Business Committee to initiate a debate in the House of Commons. In the course of the debate on 10 February 2011 many Members expressed their strong opposition to the Hirst judgment. The resolution that was then agreed, by an overwhelming majority of 234 votes to 22, stated "that legislative decisions of this nature should be a matter for democratically-elected lawmakers". The resolution also expressed support for "the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand."[67]

69. The motion was passed on a free vote in which frontbenchers from both sides chose not to participate. But both the Prime Minister and the Labour Shadow Justice Minister, Sadiq Khan MP, have made their feelings plain. At Prime Minister's Questions, in October 2012, the Prime Minister said:

70. In a press release the following month, Sadiq Khan stated:

71. We note that there has been no opportunity for the House of Lords to debate or express a view on the issue of prisoner voting, and that until both Houses have come to a view it will not be possible to confirm the will of Parliament as a whole. Nevertheless, the clearly expressed views of the elected chamber, and of both major political parties, have led us to consider the relationship between democratically elected national legislatures and the European Court of Human Rights. This has in turn led us to consider the two constitutional principles of the rule of law and parliamentary sovereignty.

Parliamentary sovereignty

72. The classic summary of the constitutional principle of the sovereignty of Parliament was given by A. V. Dicey in 1885: "The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament … has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."[70] For Walter Bagehot, parliamentary sovereignty was demonstrated by the fact that "the ultimate authority in the English Constitution is a newly-elected House of Commons."[71]

73. What this means in practice is that Parliament is generally held to enjoy complete legislative supremacy. As Dicey said, "there is no law which Parliament cannot change"[72]. The first edition of Thomas Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, published in 1844, described this supremacy in the following terms:

Sir Robert Rogers and Rhodri Walters, in a contemporary discussion of Parliament's legislative supremacy, note that "the courts of law are under a duty to apply legislation, even if that legislation might appear to be morally or politically wrong."[74]

International legal obligations

74. Some writers on constitutional theory have argued that Dicey's view of parliamentary sovereignty now needs to be qualified by reference to the increasing number of international law obligations which bind the United Kingdom.[75] Parliament itself has, in many cases, entered into these obligations—for instance, by passing the European Communities Act 1972, setting out the terms of the UK's membership of the European Union. The effect of these obligations is, in the words of the current edition of Erskine May, that while "the authority of Parliament over all matters and persons within its jurisdiction was formerly unlimited … in the twentieth century, however, Parliament accepted that its unlimited legislative authority should be qualified."[76] Of the UK's membership of the European Union, Erskine May states:

Thus in respect of EU law Parliament remains sovereign, in that it can at any time amend or repeal the European Communities Act 1972—in an extreme case, terminating UK membership altogether. But on a day-to-day basis EU law has priority over domestic law.

75. These consequences of EU membership are generally acknowledged, but the significance of the international law obligations arising out of UK ratification of the Convention is less clear. The United Kingdom entered into an obligation to abide by the terms of the Convention; Parliament could, as in the case of EU membership, formally "denounce"[78] the Convention, in whole or in part, thereby bringing to an end international law obligations arising out of membership.

76. However, as long as the UK remains party to the Convention certain legal obligations arise out of it. In particular, the UK has ratified Article 25, which provides for a right of individual petition to the Court, and Article 46, under which it is obliged to comply with any judgment of the Court in any case to which it is party. Lord Bingham of Cornhill, in The Rule of Law, argued that "the rule of law requires compliance by the state with its obligations in international law as in national law." He suggested that:

Lord Bingham did not specify what he meant by the "state", which is required to comply with its obligations under international law. The obligation upon the UK Government is clear, but can such an obligation also attach to a sovereign Parliament, which enjoys complete domestic legislative supremacy? Whereas there are mechanisms for EU law automatically to find its way onto the UK statute book by virtue of the European Communities Act 1972, there is no such mechanism so far as the Convention is concerned. The Convention leaves it to member states to implement judgments of the Court, and when changes to domestic law are required it is for member states to decide how to implement them.

The developing role of the European Court of Human Rights

77. These constitutional questions need to be seen against the backdrop of the ECtHR's adoption, since the 1970s, of the doctrine of the "living instrument", which we have touched on in Chapter 3. With the support of this doctrine the Court has interpreted the Convention in such a way as to allow it to intervene in areas which were not anticipated by those who drafted the Convention in the late 1940s—areas which have hitherto fallen under the sole jurisdiction of national parliaments.[80]

78. Interpretation of the Convention as a living instrument has, in some cases, led to outcomes that have ultimately been welcomed by national parliaments, even if they were controversial at the time. The Secretary General of the Council of Europe, Mr Thorbjørn Jagland, cited the Court's decisions on "the rights of homosexuals in the military."[81] In cases involving the UK just over a decade ago, the Court held that dismissal from the armed forces on the sole basis of homosexuality was contrary to Article 8 of the Convention (which guarantees the right to private and family life) read together with Article 14 (which prohibits discrimination in the enjoyment of Convention rights).[82] Yet at the time the UK Government, in its submissions before the Court, had argued that "admitting homosexuals to the armed forces at this time would have a significant and negative effect on the morale of armed forces' personnel and, in turn, on the fighting power and the operational effectiveness of the armed forces"[83]. Moreover, the House of Commons had itself voted against any change to the Government's policy, by a majority of 188 votes to 120.[84] But following the Court's judgment, the Government acted quickly to end the ban on homosexuals in the military, and today it seems inconceivable that the Government or Parliament would seek to reinstate it. Indeed, Mr Jagland told us that "the rights of LGBT people," and concern over infringement of these rights in some member states, was now one of the issues raised most frequently and forcefully by the UK Government within the Committee of Ministers.[85]

79. Lord Mackay of Clashfern, while describing the doctrine of the "living instrument" as "quite nebulous", suggested that it was in practice consistent with the normal conventions governing judicial interpretation of statute law:

The Equality and Human Rights Commission also argued in favour of an element of flexibility and interpretation: "the Convention must be interpreted in the light of its 'objects and purpose', central to which is promotion of the ideals and values of a democratic society."[87]

80. Yet concerns remain over other aspects of the expansion of the Court's jurisprudence. Lord Hoffmann, in his 2009 lecture to the Judicial Studies Board on 'The Universality of Human Rights', claimed that the European Court had been "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States."[88] Lord Hoffmann also argued that the Court lacked "constitutional legitimacy" and suggested that "the proposition that the Convention is a 'living instrument' is the banner under which the Strasbourg court has assumed power to legislate what they consider to be required by 'European public order'."[89]

81. For some of the witnesses to this Committee the issue of prisoner voting was a symptom of far deeper concerns about the expanding jurisdiction of the Court. David Davis MP told the Committee that the issue:

82. Lord Faulks QC tied the issue into the question of the "margin of appreciation"[91] that should be allowed to Council of Europe states when interpreting the Convention:

83. The Lord Chancellor went further, describing the Court as "an institution that has strayed too far from its core purpose to be acceptable", and suggesting that the Court was "trying to rewrite itself into virtually being a Supreme Court for Europe"[93]. He said that his concerns were not simply bound up in the question of whether prisoners should get the vote, citing in addition the recent case of Animal Defenders International v United Kingdom,[94] in which the Court upheld the UK's law restricting expenditure on political advertising by a margin of just 9 to 8:

84. It was also suggested that the expansion of the Court's jurisdiction had led to a 'democratic deficit'. Dr Pinto-Duschinsky therefore argued for the introduction of a democratic override: "a right to permit national parliaments to override judicial lawmaking by the Strasbourg court. In other words, we should try to negotiate with regard to the European Convention on Human Rights and the Strasbourg court exactly the pattern that exists for the Human Rights Act, namely that if there is a declaration of incompatibility by the judges it goes back to Parliament, which then has the last word."[96] Similar concerns have expressed by Lord Sumption, in a recent speech delivered in Malaysia, in which he argued that "the Strasbourg court's approach to judicial lawmaking gives rise … to a significant democratic deficit in some important areas of social policy,"[97] and by the former Lord Justice of England and Wales, Lord Judge, in a speech on 4 December 2013.[98]

85. Lord Mackay, on the other hand, recalling the events of the 1930s and 40s, noted that even democratically elected governments could be guilty of the gravest crimes: "The arrangement that was made by the European powers after the war was intended to deal with that situation, and, if necessary, stand up against public opinion that might be misled or misleading."[99] Sir Francis Jacobs QC also highlighted the limitations on the authority even of democratically elected legislatures: "Convention rights and their limitations are safeguarded by national law, which is underpinned by a democratic system of government. However that does not of course entitle even a democratically elected legislature to override human rights."[100]

86. A process of reform of the Council of Europe is already under way, not least thanks to the efforts of the United Kingdom Government during its recent 6-month chairmanship of the Committee of Ministers. This led to the Brighton Declaration of April 2012, which confirmed a number of reforms designed to make the Court work more effectively, in particular by reducing the backlog of cases.[101] Mr Jagland also referred to the introduction of a new process of appointment for judges of the ECtHR, and emphasised that, as a result of these reforms, "We need to get the best judges and we need to see to it that governments nominate their best judges."[102]

87. Plainly it is beyond the remit of this Committee to consider further reforms to the Convention system, but equally it is clear to us that concern remains about how the Court interprets the Convention and whether further reform is required.

Can Parliament ignore international law obligations?

88. Announcing the draft Bill, the Lord Chancellor, Chris Grayling, noted that "it remains the case that Parliament is sovereign" citing in support of that statement a judgment by Lord Hoffmann in the case of ex parte Simms. In that case, Lord Hoffmann observed that:

103

89. The ex parte Simms case, as the Lord Chancellor acknowledged, addressed domestic law (the Human Rights Act 1998), rather than the UK's international law obligations under the Convention itself. This distinction was set out in a 2011 lecture delivered by the current President of the Supreme Court, Lord Neuberger of Abbotsbury:

domestic law

104

90. Accordingly, if Parliament enacts legislation which does not comply with the Hirst judgment, or decides not to legislate to bring UK law into compliance with that judgment, it will put the United Kingdom in breach of its international law obligations. At the same time, there is no legal or other obligation that can require Members of either House of Parliament to vote in a particular way.

91. Lord Neuberger, in his 2011 lecture, described parliamentary sovereignty as "fettered so long as Parliament is required to implement a decision of the Strasbourg court". At the same time, he acknowledged that:

"Any such fetter remains only so long as the Treaty obligation itself remains valid, but any country can withdraw from the Treaty, and that demonstrates that whatever limit membership imposes on legal sovereignty, it is a fetter which endures only whilst our membership endures—i.e. only while Parliament wants it to endure."

92. Lord Mackay advanced a similar view, saying that the principle of parliamentary sovereignty "is not an argument against giving effect to the judgment … It may be a good reason for changing the arrangements, if you can think about a way of doing it, but, as I see it, it does not affect the present situation."[105] When pressed on whose will should prevail, that of the UK Parliament or the judges of the ECtHR, Lord Mackay said: "I am absolutely clear that Parliament has an obligation, in terms of the treaty to which we are still party, to give effect to the judgment of the Strasbourg court … That is what we have agreed to, not subject to anything about whether the court will come to the right decision."[106]

93. Nuala Mole, of the AIRE Centre, agreed with Lord Mackay: "The UK is bound, under Article 46 … to comply with the judgment … It is the rule of law."[107] Aidan O'Neill QC, recalling an ancient adage,[108] said that "the law is above you, no matter what, and we have to abide by the law."[109] Lord Faulks QC agreed, albeit more reluctantly: "I do not think that we have any choice. I think that we should go for minimal compliance … but, for the moment, we have run out of road in terms of choice."[110]

94. Lord Goldsmith QC said that "we signed up in Article 46 to an obligation to respect judgments of the court in cases to which we were party … the nature of courts is that from time to time they reach decisions with which parties disagree … [but] the rule of law requires that when you have signed up to an obligation to respect that judgment, you must do so."[111] Lord Lester of Herne Hill QC was still more explicit in stating that Parliament, as a constituent part of the United Kingdom state, was under an obligation to comply with the judgment: "Parliament, as well as the Executive, as well as the judiciary, are under an international law obligation that was accepted on behalf of the United Kingdom. This Committee and Parliament as a whole have an obligation."[112]

95. In contrast, Lord Judge, in his speech on 4 December 2013, affirmed that the final decision rested with Parliament:

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96. The Attorney General, while linking UK compliance with the Hirst judgment to the rule of law, used terms that emphasised the moral duty upon all members of the legislature to reflect upon the consequences of non-compliance: "Seeing as, on the whole, the rule of law matters, it must matter to this Committee and should matter to this parliament, as indeed it matters to the government, as to whether you decide to ignore your international legal obligations or find a way of meeting them."[114]

97. Ultimately, Members of both Houses are free to vote according to their conscience. There are two possible qualifications. The first is the reference in the Ministerial Code to "the overarching duty on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice."[115] The second relates to the specific duty placed upon the Lord Chancellor, as part of his oath of office (as amended by section 17 of the Constitutional Reform Act 2005), to uphold the rule of law.

98. The Lord Chancellor was careful to distinguish between these two qualifications, noting that "the Prime Minister is the arbiter of the Ministerial Code and can decide when and how it is applied, whereas, in the case of the Lord Chancellor, I have sworn an oath to uphold the law."[116] He therefore indicated that he would seek legal advice before deciding which way to vote:

117

Non-compliance and withdrawal from the Convention system

99. We have also considered what would happen if Parliament decided not to abide by the UK's international law obligation to comply with the Hirst judgment? One view was expressed by Mr Davis, Mr Straw and Mr Raab:

118

100. This is a plausible assessment of political realities in the Council of Europe. Human rights abuses are indeed widespread in many Council of Europe member states, and the governments of those states frequently drag their feet—sometimes for many years—in complying with judgments of the ECtHR against them. But that is not the situation in which the UK finds itself: rather than simply leaving the Hirst judgment to drift the Government, in Option 3 in the draft Bill, has invited Parliament to consider enacting legislation re-stating a law that has been found to be in breach of the Convention. To the best of our knowledge, such a course of action would be without precedent in the history of the Council of Europe. Mr Jagland confirmed that he was not aware of any case in which "any country has said that they do not have the will to execute a judgment … we have never had anyone say, 'We will not execute the judgment.'"[119]

101. Some witnesses therefore argued that the fundamental choice for Parliament was not whether or not to comply with the judgment of the ECtHR in Hirst, but whether or not to denounce the Convention—in Lord Neuberger's phrase, to break the fetter linking us to the Convention system. Dr Pinto-Duschinsky said: "If you are in the game, you play by the rules of the game. If those rules are so burdensome and if the sacrifice is so great … if you are sacrificing the basis of our democracy, one must not continue to play."[120]

Legal effects of non-compliance and withdrawal

102. We have also explored some of the practical legal consequences in respect of the Hirst judgment that would flow from a decision either not to comply with the Hirst judgment, or to denounce the Convention.

103. If the United Kingdom were to continue to enforce its prohibition on prisoner voting, one issue that would arise is whether the Court would seek to award claimants any form of monetary compensation. Though the Court has yet to award claimants compensation in any of the claims relating to the disenfranchisement of prisoners that have been brought before it, this could change. Nils Muižniek, the Commissioner for Human Rights at the Council of Europe, warned the Committee that "the expiry of the deadline for execution, which has already been extended several times, means that the Court may now examine all of the UK cases on an individual basis and award compensation to each of the applicants."[121] The Government told us, in respect of the existing 2,354 cases, that "if the ECtHR resumed consideration of the adjourned clone cases and decided to award £1,000-£1,500 in each, the total liability in relation to those cases would be approximately £2.4m-£3.5m". In addition to direct compensation to prisoners, there is also the possibility of legal costs being awarded to lawyers acting on behalf of claimants. Moreover, these cases may prove to be the tip of the iceberg, since new liabilities will arise in respect of every successive election.

104. When we put this risk to the Lord Chancellor, he told us:

"As we stand at the moment, the Court has expressly not awarded damages to any prisoner who has gone to Strasbourg over this issue, and it is not possible for the UK courts to apply compensation in such a situation. Therefore, I am afraid that that question is theoretical. I will cross that bridge if we come to it."

When he was pressed on the question of whether the Government would pay any compensation awarded by the Court, he replied: "Then you get into further interesting territory, because the fines are not actually enforceable, and Parliament might choose to say to the executive, 'You cannot pay them'". The Lord Chancellor acknowledged that "if Parliament votes [to retain the existing -prohibition], I am absolutely certain that the clone cases will be reopened."[122]

105. We have also considered whether, if the UK were to take the more radical step of denouncing the Convention, it would remove the UK's existing obligation to comply with the judgment in Hirst. The answer appears to be that it would not.

106. Under Article 65(2) ECHR, "Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective." In other words, denunciation has no retrospective effect, and Mr Giakoumopoulos accordingly argued that "the judgments of the Court that have already been taken need to be executed and implemented, even after the possible denunciation."[123] This view was endorsed by Lord Mackay: "There is provision … for denunciation of the convention, but the provision appears to me to say that you cannot get out of an obligation that you have already incurred by denouncing the convention after matters have occurred."[124]

107. In practice, were the UK to decide to leave the entire Convention system, these two issues, of compensation claims and of the continuing obligation to comply with the Hirst judgment, could become largely academic, politically if not legally. If the UK decided either to defy the Court or to leave the entire Convention system, it is hard to envisage any future Government abiding by any residual legal obligations arising out of membership.

Political consequences of withdrawal from the Convention system

108. Finally, we have touched on some of the political consequences of non-compliance and, in the most extreme scenario, UK withdrawal from the entire Convention system. We agree with Mr Davis, Mr Straw and Mr Raab that expulsion is unlikely. More significant is that non-compliance would represent a major departure from the UK's longstanding approach to its international obligations. This was forcefully stated by the Attorney General, Dominic Grieve MP: "It has been the settled policy of successive United Kingdom governments that we adhere, or seek to adhere—it does not mean we do not sometimes breach our obligations, but that we seek to adhere—to our international legal obligations." Mr Grieve acknowledged that the "reputational consequences to the United Kingdom" of non-compliance would be "a very serious consideration."[125]

109. More direct consequences could be felt by the Council of Europe itself. As Mr Jagland said, the UK, as well as being a founder member of the Council of Europe, is commonly regarded as "the best pupil in class". He feared that a "bad example" set by the UK would encourage others: "Many others will say, 'If the United Kingdom is doing that, we can also do it' … It may be … the beginning of the weakening of the Convention system and probably after a while there may also be dissolution of the whole system."[126] While acknowledging that the difficulties faced by the UK, given its good record of compliance, might suggest that there were problems with the approach being adopted by the ECtHR,[127] he also pointed out that "for millions of people out there in Europe, this Court and Convention system is protecting their rights,"[128] and highlighted investment and reform programmes in countries such as Ukraine and Turkey. The UK, he argued, could not insulate itself from such countries: "what happens in Ukraine or Russia influences us and the whole continent."[129]

110. Mr Jagland's final point was supported by the Attorney General, who highlighted the recent case of Greenpeace activists, some of them UK citizens, imprisoned in Russia: "potentially some of their best arguments on proportionality may lie with the European Convention on Human Rights and the protection which the Convention may afford them. This is not a dialogue that just concerns the UK; it has a much wider remit."[130]

Conclusions of the Committee

111. We agree with the evidence of Lord Mackay of Clashfern, that the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights.

112. Parliament remains sovereign, but that sovereignty resides in Parliament's power to withdraw from the Convention system; while we are part of that system we incur obligations that cannot be the subject of cherry picking.

113. A refusal to implement the Court's judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such an action as setting a precedent that they may wish to follow.

66 Jack Straw, Last Man Standing: Memoirs of a Political Survivor (2012), pp 538-539 Back

67 HC Deb., 10 February 2011, col. 586 Back

68 HC Deb., 24 October 2012, col. 923 Back

69 Labour Party Press Release, Labour's policy is that prisoners should not be given the vote, 22 November 2012 Back

70 A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885) Back

71 Walter Bagehot, The English Constitution (1867) Back

72 A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885) Back

73 Quoted in Robert Rogers and Rhodri Walters, How Parliament Works, 6th Edition (2006), p 80 Back

74 Ibid, p 81 Back

75 See for instance Nevil Johnson, Reshaping the British Constitution (2004), pp 129-133 Back

76 Erskine May, 24th Edition (2011), pp 183-184 Back

77 Ibid, pp 184-185. Sir Robert Rogers and Rhodri Walters argue that the sovereignty of Parliament has also been limited in practical ways in recent years by the passing of the Human Rights Act and devolution to Scotland and Wales, and, with some qualifications, to Northern Ireland (see R. Rogers and R. Walters, How Parliament Works, 6th Edition, (2006), p 82). Back