Chapter 5: The enforcement of the ECHR and EU Charter in national law
84.In this Chapter we consider how the ECHR and the EU Charter are enforced in national law and how they have been enforced in relation to one specific issue, prisoners’ voting rights.
Declaration of incompatibility v disapplication of national law
85.Opinion was united on the greater strength of the remedies available to enforce the EU Charter under national law.
86.Lord Goldsmith explained that “ever since the decision in Factortame … it has been recognised that EU law is supreme. Therefore, if there is a contravention of EU law, even by Parliament itself, its sovereignty has to give way to EU law, and then the courts can, in fact, strike down the primary legislation”.84 Mr Howe agreed: “undoubtedly the remedies [under the EU Charter] are in principle superior because they include under the Factortame doctrine the ability of court to disapply primary legislation, which makes it a very powerful instrument”85. Professor Peers clarified that the CJEU has held that some of the EU Charter’s provisions have direct effect, “in some cases at least, that means that you can set aside national law”.86
87.This view was shared by the Scottish and Welsh Governments. Mr Biagi said that “the remedies that are available for violations of EU law by the UK Government that happen to take place in Scotland are much greater because of the greater powers that the Court of Justice has, whereas the ECHR is advisory”.87 The Welsh Government explained the relative strengths particularly clearly:
“The potential remedy for a breach of EU law is notably different to the position in relation to breach of the ECHR. Although a breach of the ECHR may trigger a declaration of incompatibility (section 4 Human Rights Act 1998), the UK law itself remains in force—Parliament would be expected to remedy the issue appropriately in those circumstances.
“A finding of a breach of EU law, on the other hand, can have a more dramatic effect: if national law breaches a directly applicable fundamental right, the national courts or CJEU can disapply that inconsistent national law, pursuant to the principle of supremacy.”88
88.The Secretary of State had come to a similar conclusion:
“There is a clear difference between what the European Court of Justice can do and the European Court of Human Rights—and, indeed, British courts when they are applying Convention rights. British courts can say that any legislation that Parliament passes is inconsistent with the ECHR. It can issue a declaration of incompatibility. Parliament has the capacity to fast-track changes to that legislation, but if Parliament wishes to carry on in wilful denial of this declaration of incompatibility, it can. What Parliament cannot do, under current legal frameworks, is to say, where European Union law is clear, that it will not apply it.”89
89.Several witnesses emphasised the advantage to litigants of being able to ask a court to strike down national legislation. Professor Peers told us: “That is a much stronger remedy and could make a big impact in an individual case where the two [the ECHR and the EU Charter] overlap”.90 Professor Douglas-Scott agreed:
“EU law clearly carries some advantages in terms of remedies, because very often litigants simply want a legal provision or something in an Act of Parliament not to apply in their case and to be able to get a remedy based on that. In the case of EU law, that can be a strong advantage—you can even go on and claim damages thereafter if you feel that you have suffered a loss as a result—whereas with the Human Rights Act … the long-stop remedy is the declaration of incompatibility, which may not help the litigant much at all.”91
Parliamentary sovereignty
90.A number of witnesses saw the courts’ power to issue a declaration of incompatibility as being more consistent with parliamentary sovereignty. Professor Anthony, for example, thought that “the Human Rights Act through the declaration of incompatibility mechanism strikes an appropriate balance between the powers of the judiciary in relation to the legislature”.92 The Welsh Government agreed: “the mechanisms … by which the courts may declare that a provision of national law is incompatible with the Convention, but which leaves it to Parliament to remedy the mischief—strike a unique balance between UK parliamentary sovereignty and international human rights.”93 The Secretary of State said: “We need to ensure that we uphold Parliamentary sovereignty, which, to be fair, the Human Rights Act affirms”.94
91.By contrast, the supremacy of EU law was seen by several witnesses as a greater threat to parliamentary sovereignty, even though they argued Parliament could, if it wished, repeal the European Communities Act 1972, which incorporates the supremacy of EU law into national law. The Secretary of State, for example, commented that:
“the Court of Justice of the European Union can play the ace of trumps at the moment. It can say, ‘Sorry, European law prevails’. For that reason, as a believer in parliamentary sovereignty, I think it is preferable if the British Parliament and British courts can decide on these matters wherever possible.”95
92.Lord Woolf agreed: “You can legally reconcile the doctrine of the sovereignty of Parliament with the European Convention on Human Rights. You cannot do that with regard to the European Charter, because the position there is that you can trump a statute.”96
Damages
93.Professor Dougan agreed with Professor Douglas-Scott97 that the remedies under the EU Charter were better with regard to claiming damages: “you can get compensatory damages for breach of EU law as of right, whereas that is not the case under the Human Rights Act—compensatory damages are discretionary.”98
Delay
94.The delay in getting a final decision from the ECtHR was a further weakness of the enforcement mechanism under the ECHR and the HRA, according to Professor Peers: “As a system, you have to go all the way to the ECHR; it does not give a ruling that has a direct impact in national proceedings in the same way that the EU Court ruling does. It also means you have a longer process in principle to exhaust your remedies in the UK before you can go to the ECHR.”99 Professor Douglas-Scott agreed: “If we are talking about the Human Rights Act, eventually a case may have to go the whole way to Strasbourg … Most litigants would not want to face that long, long wait for their case to go all the way”.100
Conclusions
95.The evidence we received is clear: the power of national courts under the European Communities Act to disapply a provision of national legislation that is inconsistent with the EU Charter is a more effective remedy than a declaration of incompatibility under the Human Rights Act.
96.A litigant can get compensatory damages for breach of EU law as of right; under the Human Rights Act damages are discretionary.
97.A challenge under the Human Rights Act may have to be litigated all the way to the European Court of Human Rights, in which case a significant delay will ensue.
A case in point: prisoner voting rights
98.The relative strengths of the enforcement mechanism under the two systems are brought sharply into focus by the issue of prisoner voting rights, on which the ECtHR has ruled in relation to UK prisoners, and the CJEU in relation to a French prisoner. We set out the background to these cases, before summarising witnesses’ views on them.
The UK ban on prisoner voting
99.Section 3 of the Representation of the Peoples Act 1983 prevents convicted prisoners in the UK from voting in local, parliamentary and European parliamentary elections. In October 2005, in a case called Hirst v United Kingdom (No.2),101 the ECtHR found that the UK’s ban on prisoner voting constituted a violation of Article 3 of Protocol No. 1 ECHR, which requires States 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.” Central to the ECtHR’s decision was the fact that the UK’s prohibition was “automatic” on conviction, and “indiscriminate”: no exceptions were made for less serious offences or shorter sentences. The UK did not amend national legislation on prisoner voting in the light of the ECtHR’s judgment, despite being legally bound to comply with it.102
100.In its judgment in Greens and M.T. v. United Kingdom103 in November 2010, the ECtHR again found the UK in violation of the right to free elections, as the UK had failed to implement the Hirst judgment. The UK was required to introduce amending legislation before November 2012.
101.In Firth and others v United Kingdom, decided in August 2014, ten UK prisoners brought an application to the ECtHR that their prohibition from voting in the 2009 European parliamentary elections violated their rights to vote under the ECHR. The ECtHR noted again that the UK’s legislation implementing the ban remained in place, despite the publication of a draft Bill on prisoner voting104 and the appointment of a pre-legislative Joint Committee,105 and found the UK to be in violation of Article 3 of Protocol 1 of the ECHR. In McHugh and others v the United Kingdom, decided in February 2015, applications from 1,015 UK prisoners were combined: the ECtHR found that the right to vote of each had been violated.
102.To date the blanket ban on prisoner voting remains in place.
The French ban on prisoner voting
103.In the case of Delvigne,106 a French prisoner argued that his prohibition from voting in European parliamentary elections was contrary to Article 39(2) of the EU Charter, which states that “members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”. The French court referred the case to the CJEU for a preliminary ruling.
104.The CJEU found that Article 39(2) constituted the expression of the right to vote in elections to the European Parliament under EU law.107
105.At the time of Mr Delvigne’s conviction, French law banned only those prisoners convicted of criminal offences punishable by at least five years’ imprisonment from voting. The CJEU considered whether this limitation on the right to vote under EU law was lawful. It found that it was for two reasons: because it “did not call into question the right to vote as such”,108 as it only excluded certain categories of prisoners from voting; and because it was proportionate as it took into account the nature and gravity of the criminal offence committed and the duration of the penalty.
The views of witnesses
Strengths and weaknesses
106.Mr Grieve saw the two strands of case-law on prisoner voting rights as an example of the strength of EU law compared to the weakness of ECHR law:
“As the Charter of Fundamental Rights has the capacity to have direct effect, it may therefore be more effective than the Convention, which can of course be disregarded by a Government; in a sense, that is the issue over prisoner voting.”109
107.Dr Lock agreed that the cases of Hirst and Delvigne demonstrated “quite nicely” the impact that the much stronger remedy available under EU law of disapplying an Act of Parliament could have on litigation.110
The effect of Delvigne on UK prisoners
108.The majority of the witnesses thought that Delvigne was likely to lead to EU law-based challenges in the UK’s courts seeking to overturn the blanket ban on voting in European Parliament elections. Mr Grieve said:
“On the basis that we have not put our house in order—we could probably do so quite easily if there was the political will, but there is a political reluctance—I can see a risk that as we approach the next European elections someone will mount a challenge on the basis that they are refused the right to vote. I would be interested in the views of my two colleagues, because as I read Delvigne there is at least a reasonable prospect that they would be successful. The United Kingdom has a blanket prohibition, which, if you read Delvigne, is the thing that, looking at ECHR jurisprudence, the European Court of Justice has said it does not think is correct, even though in Delvigne it rejected a suggestion that the French system was wanting. A flag has been hoisted that says that this is an area in which, certainly on voting in EU elections, the court has competence.”111
109.Mr O’Neill agreed:
“I put forward [in the Supreme Court]112 the EU law point that voting in the European Parliament had something to do with EU law, and that therefore proportionality might apply to that … Delvigne seems to back up the original argument that was presented … On the question of whether Delvigne opens up the analysis that was rejected in Chester and McGeoch, I would say yes, it does.”113
110.Professor Anthony thought that “the Northern Ireland courts would be bound to follow the Court of Justice ruling”.114 Mr Biagi said “the Delvigne ruling certainly suggests that the UK Government are going to have to provide a remedy and reconsider the blanket voting ban on European Parliament elections. That will apply in Scotland as well as in the rest of the UK.”115 Professor Dougan thought that “the UK rules would be found to be disproportionate” in the light of Delvigne.116
111.Sir David Edward was less sure: “the Court of Justice did not at any point in its judgment say that you could not have an indiscriminate ban. The court limited itself very carefully to the case before it”.117 Lord Woolf agreed: “Delvigne never got to the situation of the sort of ban that we have in this country in respect of prisoners’ rights to vote in European elections.”118
112.Dominic Raab MP, Parliamentary under Secretary of State for Justice, said that the issue of prisoners’ voting rights remained a matter for Parliament. He did not think that Delvigne could be relied on in national courts: “In the case of Delvigne, the French ban was upheld, so I do not think that there is any imminent risk of litigation” in the UK. 119
Conclusions
113.We agree with the majority of our witnesses who said that the case of Delvigne is likely to lead to the UK ban on prisoner voting again being challenged, in relation to European Parliament elections.
101 Hirst v United Kingdom (No.2) (2005), ECHR 681
102 ECHR, Article 46(1)
103 Greens and M.T. v. United Kingdom (2010) ECHR 1826
104 Ministry of Justice, Voting Eligibility (Prisoners) Draft Bill, Cm 8499, November 2012: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228632/8499.pdf accessed 27 April 2016]
105 See Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Draft Voting Eligibility (Prisoners) Bill (Report of Session 2013–14, HL Paper 103, HC 924)
106 Case C-650/13, Thierry Delvigne v Commune de Lesparre Medoc and Prefet de la Gironde, 6 October 2015
107 Thierry Delvigne, paras 41, 44
108 Thierry Delvigne, para 48
112 Chester and McGeoch [2013] UKSC 63, 16 October 2013, in which Aidan O’Neil QC represented Mr McGeoch. The Supreme Court held that EU law did not incorporate a right to vote paralleling that recognised by the ECHR. In any event, the general ban on prisoner voting could not have been disapplied as a whole. Nor could the Court itself have devised a scheme compatible with EU law; that would be for Parliament.