British Sovereignty v. The European Convention on Human Rights: The Case of John Hirst

The early summer of 1979 must have been unseasonably cold in England. For one 63 year old landlady resident in the Berkshire town of Reading was led to ask her 29 year old lodger, as they sat together in her living room watching television one evening in late June of that year, to fetch some coal from her shed for the fire.

The lodger duly obliged. Unfortunately, he also returned with something else kept in the shed besides coal with which he went on to do something to his landlady she had not requested and most decidedly would not have wanted. Wielding an axe that he had fetched back along with the coal, the lodger proceeded to set about his landlady’s head with fatal effect.

As he waited for his victim to die, the man, who at the time was on parole from a two-year prison sentence for burglary, adjourned to her kitchen to brew a cup of coffee, which he drank before walking six miles to the nearest police station to turn himself in.  Reportedly without remorse, the man successfully pleaded not guilty to murder on the grounds of diminished responsibility. Later that year he received a 15 year prison sentence for manslaughter, subsequently extended by a further ten years for several violent offenses against prison officers he committed while serving his original sentence.

It was while in a high security unit that the axe killer, John Hirst, received from a visitor to it a book that was to change the direction of his life and with it the course of British history. The life-changing book Hirst received was Prison Rules: A Working Guide. Published by the Prison Reform Trust, a UK charity set up in 1981 to help improve the conditions of UK prisoners, its donor was the charity’s founding director, who shortly afterwards became the country’s first Ombudsman for Prisons and Probation.

The effect on Hirst of receiving that book was electrifying. Suddenly, he found a point and purpose to life. That, he now saw, was to extend the rights of UK prisoners as far as he could push the law which, to his delight, he found remarkably elastic.

Perhaps, what so galvanised Hirst was to have read in the book the following obiter dictum that Lord Justice Wilberforce delivered in his House of Lords judgment in the case of Raymond v Honey (1983):

‘Under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by implication.’

To ascertain which rights prisoners in England did retain in prison became for Hirst something of a mission. When in 1998 the last Labor government incorporated the European Convention on Human Rights into English law, by enacting the Human Rights Act, shortly after that act came into effect in 2000, Hirst invoked one of the Articles in the Convention to claim that, along every other UK prisoner, his right to vote was being violated in not being allowed to vote in the 2001 elections.

With unremitting determination, Hirst pursued his case, taking it right up to the European Court of Human Rights in Strasbourg which, in 2005, unanimously found in his favor (Hirst v. The United Kingdom [No.2]) .

The British government was duly put on notice that the law of the land had been found by the Court incompatible with the European Convention and therefore had to be amended so as to avoid the government laying itself open to successful compensation claims from every UK prisoner, as well as the opprobrium that would attach to a flagrant breach of the Convention.

The last Labor government succeeded in avoiding doing anything in response to that ruling. However, as time went on, the deadline for a governmental response drew increasingly near. None of the main political parties was at all happy about the ruling, although few had any firm idea of how best to respond to it.

In 2009, the Conservative Party announced in its election manifesto that, if returned to power in the 2010 general election, a future Conservative government would replace the Human Rights Act with a British Bill of Rights that, in some unspecified way, would circumvent the need to change the law denying prisoners the vote. Although also ostensibly perturbed by the Court’s ruling in the Hirst case, the Liberal Democrats opposed the repeal of the Human Rights Act.

Accordingly, when the 2010 General Election failed to return a single party to power, and a coalition government was formed between the Conservatives and the Liberal Democrats, fudge and compromise became the order of the day on the issue. In March 2011, the Government established an eight-man Commission ‘to investigate the creation of a UK Bill of Rights and to provide advice on the reform of the European Court of Human Rights’.

Meanwhile, the European Court accorded the UK Government some more leeway by deciding to hear a related case on the outcome of which it allowed the UK government to make its response to the Court’s ruling in the Hirst case conditional.

That other case (Scoppola v. Italy [No.3]) was finally settled at the end of May, its outcome not materially affecting the Court’s declaration of incompatibility in the Hirst case. With its resolution, the clock started again towards the deadline by which the UK government had to respond to that declaration. It now had only six months to reply, that is, until the end of November.

The end of last month brought with it a conjunction of several portentous events, all closely connected with the matter. The first was the end of the consultation period of the Commission on a Bill of Rights whose final report must now be delivered by the end of the year. The second was a warning to the British government from the Committee of Ministers at the Council of Europe, the body that oversees the European Court of Human Rights. It warned that time was running out for its response to the Court’s declaration of incompatibility in respect of prisoner voting rights. It was told it had to be in by the end of November. The third portentous event to occur at the end of last month was the publication by the British Academy of the report Human Rights and the UK Constitution.

Written by Colm O’Cinneide, Reader in Law at University College London, under the oversight of what, in its preface, the Vice-President of the British Academy describes as ‘an eminent group of constitutional experts’, this report was published under the imprimatur of not just any old public policy institute. The British Academy is the country’s premier academic research institute in the humanities and social sciences.

British Academy for the Humanities and Social Sciences

The timing of its publication could not, therefore, have been more auspicious. Clearly designed to influence the outcome of the Commission on a UK Bill of Rights, the report demands close attention, especially as regards its recommendations on whether the UK should introduce a Bill of Rights, what any such Bill of Rights should contain if introduced, and, if one is, whether it should replace or merely supplement the Human Rights Act.

The conclusions reached by the report on these matters are remarkably sanguine. Essentially, it argues, all is well in the field of European human rights law, notwithstanding the moral panic it claims has been whipped up by right-wing British politicians and press. Indeed, it argues, so satisfactory are things that, although there might be marginal gains from the UK introducing a Bill of Rights that added to the civil and political human rights conferred on the British by the European Convention habeus corpus as well as social and economic rights, since any such a Bill would disappoint those critical of the European Convention and of the way the European Court has interpreted it, there is good reason for the government not to do anything but come to terms with the fact that it must now come to heel and obey the rulings of the Court, which, in that of the Hirst case, demand it accord at least some more UK prisoners the right to vote than the relative few who currently enjoy it, such as those on remand and certain others.

Sadly, the report is immensely disappointing, given its august provenance. Although purporting to have been written from ‘an academic and non-partisan angle’, it is anything but either. Instead it is both sloppy and one-sided for the following reasons.

First, early on in his report, O’Cinneide makes a claim so egregious that it casts doubt on all that follows. He states that:

‘a consensus exists that individuals possess certain basic and inalienable human rights and that democracy should be based on respect for these rights, without which individuals could not participate freely or effectively in the democratic process.’

Allthat  O’Cinneide offers in support of this assertion is a reference in a footnote to three pages from a 2001 article by Jurgen Habermas, entitled ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ What Habermas writes in these pages, however, is as unrelated to O’Cinneide’s claim, as it is, characteristically, abstract and opaque.

Of course, you are likely to find such a consensus as O’Cinneide claims there is, if you take as your reference lawyers who, on their Facebook pages, cite as their favorite websites, as does O’Cinneide on his, those belonging to the LGBT Lawyers of Ireland, We Love the NHS, and the New Left Review. You will not find any such consensus, but rather quite the reverse, should you take as your reference class a representative sample of the British people, which is surely more reasonable in the present context. That you will do is shown by the results of a survey carried out by the market research company YouGov  in February 2011.

In response to a series of germane questions, the responses of the two and half thousand Britons polled were as follows:   

  • Currently Britain is a signatory of the European Convention of Human Rights, meaning people can go to court if they feel their human rights have been abused and, ultimately, can take their case to the European Court of Human Rights. Do you think it is right or wrong that the European Court of Human Rights should be able to make rulings on things the British Parliament or courts have decided?

Right: 25 per cent;

Wrong: 63 percent;

Not Sure: 13 per cent.

  • Overall do you think human rights laws are good or bad for British justice?

Good: 22 percent

Bad: 51 percent;

Neither: 18 percent;

Don’t know: 9 percent.

  • Do you agree that everyone should be entitled to have their human rights protected, even if they have broken the law themselves?

Agree: 31 percent; Disagree: 64 percent; Don’t know: 6 percent.

  • Thinking about Britain’s membership of the European Convention on Human Rights, which of the following best reflects your view?

Britain’s membership has been a valuable protection against the government ignoring the human rights of British people and on balance a good thing: 19 percent.

Britain’s membership of the ECHR has been abused by lawyers making spurious cases on behalf of criminals and on balance a bad thing: 57 percent.

Neither or don’t know: 24 percent.

  • Currently convicted prisoners in the UK are not allowed to vote in elections. The European Court of Human Rights has ruled that it is illegal for Britain to ban all prisoners from voting. Which of the following best reflects your view?

All prisoners should be allowed to vote at elections: 6 percent

No prisoners should be allowed to vote at elections: 69 percent

Neither of these or don’t know: 26 percent

O’Cinneide is truly living on another planet, if he thinks, as he claims is the case, that: ‘Respect for human rights has become part of the UK’s culture of public governance.’ Either that or the UK’s culture of public governance no longer reflects or commands the support of the British public. Either of these latter options is hardly a recommendation for how well this culture of public governance promotes democracy and respects the human rights of the British people, as it purports to. For if they should have any human rights at all, these surely include their right that those who govern them in their name should reflect and represent their will.

It was equally as dubious of O’Cinneide to claim, as he goes on to do in his report, that: ‘In general, the existing state of UK human rights law has received favourable reviews from legal academics and the judiciary.’

Again in a footnote, O’Cinneide cites in support of his claim several articles by legal academics and judges. These certainly all do express favorable opinions about current human rights law in the UK. However, O’Cinneide seriously under-represents  the volume of unfavorable opinion towards current UK human rights law among members of these two groups, when the only figures that he cites from them as having expressed serious criticism of it are the retired judge Lord Hoffmann, plus what he calls ‘commentators linked to centre-right think-tanks’.

These so-called ‘commentators’ include two appointees to the Commission on a Bill of Rights of whom one resigned in March in protest at the pressure under which he claims he was put by its chair to bow to the will of  Strasbourg. That commentator is the political scientist, Michael Pinto-Duschinsky who produced a report critical of current European human rights law, published last year by the UK think-tank Policy Exchange.

Although neither a legal academic nor a judge, among Pinto-Duschonsky’s many accomplishments are his having served as a consultant on human rights and political finance to the Council of Europe, and on constitutional and political reforms to the United Nations, World Bank, OECD, and many other such organizations. Writing in explanation of his decision to resign from the Commission on a Bill of Rights, Pinto-Duschinsky relates that, when he tried to raise the question of Parliamentary sovereignty with its chairman, not only did the latter refuse to discuss it but he took him ‘into a basement room of the House of Lords’ to warn him that he ‘would be considered a maverick without influence if … [he] persisted in … [his] demand’.

The other so-called ‘commentator’ who has written a report critical of UK human rights law for a center-right think-tank and who remains a member of the Commission on a Bill of Rights is Jonathan Fisher QC.  Despite his being a highly respected practicing barrister, Fisher is also, among many other things, a Visiting Professor of Law at the London School of Economics and Chartered Visiting Professor at the City Law School of London’s City University.

Moreover, in his report Rescuing human rights, published by the Henry Jackson Society in March 2012, Fischer cites numerous ‘senior judges [who] have expressed concerns about the ways in which the European Court of Human Rights has approached its work… [i]n particular… the Court’s failure to apply the principle of subsidiarity with sufficient rigor and to treat the margin of appreciation [ -- that is, allowable discretion by national courts (D.C.)] as too narrow in certain instances.’  As well as Lord Hoffmann, among the other senior judges whom Fisher mentions as having publicly criticized or else publicly expressed reservations about the final authority of the European Court and some of its judgments are Lady Justice Arden, Baroness Hale, and the Lords Kerr, Scott, Carswell, Judge and Hope.

For O’Cinneide, therefore, to claim in his report that: ‘In general, the existing state of human rights law has received favourable reviews from legal academics and the judiciary’ is as exaggerated and misleading as his claim is that a consensus exists within the UK that democracy there should be based upon respect for human rights.

Given these misrepresentations by O’Cinneide of public and legal opinion on the merits and authority of European human rights jurisprudence, it would be otiose to go into detail examining the considerations he adduces in defense of it. Suffice to say  they entirely fail to support his concluding contention that:

‘[T]he structural relationship that currently exists between the UK and the Strasbourg Court is not incompatible with the UK’s constitutional commitment to democratic self-governance and the primacy of Parliament.’

The current relationship between Strasbourg and the UK is most certainly incompatible with the UK’s historic and continuing commitment to democracy and the sovereignty of Parliament. This is evidenced by the fact that, despite there being no consensus among the current parties to the European Convention as to the merits of according prisoners voting rights, let alone among other states, and despite the British House of Commons having voted overwhelmingly in February 2011 for Britain retaining a wholesale ban on prisoner voting, the European Court remains  insistent Britain must amend its laws to accord the vote to at least some more prisoners than it currently does, so as to comply with an article in the European Convention that the Court has quite tendentiously, and contrarily to the original intent of its drafters, chosen to construe as positing a right of prisoners to vote. The Article in question is Article 3 of Protocol I and it does not so much as mention any such a right but runs:

‘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 European Court has chosen to construe this Article as implying the individual right of all citizens to vote, regardless of where they are situated and why, unless, in the case of prisoners, precise reasons have been articulated by some court in each case and, in a manner proportionate to their offences, why they should be deprived of it during their period of incarceration. This is a quite tendentious and wholly inaccurate interpretation of the Article and of the intentions of those who drafted it.

For a much better argued and impartial presentation of the case for and against UK prisoners being accorded the right to vote,  those interested in pursuing the subject  can do no better for starters than by consulting the short, interactive video on it, made by a final year philosophy  undergraduate at the University of Sheffield. Its wit and wisdom show that not all sanity has been lost in Britain… at least, as yet.

David Conway

David Conway is a Visiting Senior Research Fellow at the Westminster-based social policy think-tank Civitas: Institute for the Study of Civil Society which he joined in 2004 and where he worked full-time as a senior research fellow for five years, after leaving academia following a thirty year career teaching Philosophy at various British universities. Professor Conway's numerous publications include A Farewell to Marx; Classical Liberalism: The Unvanquished Ideal; Free Market Feminism; The Rediscovery of Wisdom; In Defence of the Realm; A Nation of Immigrants? A Brief Demographic History of Britain; and Liberal Education and the National Curriculum.

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Comments

  1. John O'Dowd says

    There’s one specific point in the account given here that requires correction.

    The commentary states that the decision of the Grand Chamber in Scoppola v Italy (No 3) ‘[did] not materially affect[...] the Court’s declaration of incompatibility in the Hirst case’. In a literal sense that is true, but the decision did clarify what the United Kingdom might do to bring an end to the violation.

    In Scoppola v Italy (No 3) the Court held that Italian law on this topic did not violate Article 3 of Protocol No 1 . The relevant law provided that ‘only those offenders sentenced to at least three years’ imprisonment were deprived of the right to vote. Where the offence attracted a sentence of less than five years, the disenfranchisement lasted only five years, a lifelong ban on voting being reserved for offenders sentenced to between five years and life’ (as summarized in para 28 of the judgment.)

    In reaching that conclusion the Grand Chamber rejected the notion that a violation of Article 3 occurs simply because the loss of the right to vote is not an individualized measure applied on a case-by-case basis by a judge. The Court stated (at para 99):

    ‘While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge. Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed.’

    It elaborated on this point in para 102 of the decision:

    ‘ … the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1.’

    This refinement in the Scoppola decision obviously does not meet the objection that Article 3 cannot reasonably be interpreted as extending the right to vote to any prisoner in any circumstances or that it should entirely for national parliaments to determine whether and how far prisoners should enjoy the right to vote. However, it does mean that the following statement is inaccurate:

    ‘The European Court has chosen to construe this Article as implying the individual right of all citizens to vote, regardless of where they are situated and why, unless, in the case of prisoners, precise reasons have been articulated by some court in each case and, in a manner proportionate to their offences, why they should be deprived of it during their period of incarceration.’

    The Grand Chamber in Scoppola (No 3) disavowed that specific interpretation of Article 3 and this should be taken into account in assessing what precise issue is now before the British Parliament.

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