No Detente on Prisoner Voting and the ECHR in the UK

In the wake of the European Court’s judgment last May in Scoppola v. Italy, in which it more or less gutted its prior cases on prisoner voting rights (see my previous post on prisoner voting and strategic judging for more background), the UK governmental structures have been debating how to respond in their long-drawn out altercation with Strasbourg. Scoppola essentially gave the UK an opening to end the dispute – all it needed to do to comply with the Court re-interpreted judgment in Hirst was to pass some essentially cosmetic changes to its existing legislation that would ‘strike the proper balance’.

The opportunity is not yet completely lost, if cooler heads prevail. The UK government is of course not monolithic, and some parts thereof would rather put the whole thing to rest. But that process is political more than it is legal, and after today’s performance by David Cameron at the PM questions in the House of Commons, a detente between the UK and Strasbourg seems increasingly unlikely.

“No one should be under any doubt – prisoners are not getting the vote under this government,” he told MPs, in answer to a leading question by a Labour MP strongly urging him to continue defying the Court. The whole exchange is available at BBC News, and the short video bears watching, if nothing else then for witnessing the extent of the cheers among the assembled parliamentarians in support of the Prime Minister’s position.

From the PM’s point of view, holding fast does seem to be politically the most logical thing to do. Neither his own party nor the opposition seem keen on striking even the slightest compromise to diffuse the row. There are no votes to be had in supporting the rights of prisoners. The tabloid press are as ever like sharks circling in the water, smelling blood and ready to pounce at any sign of weakness. As for the European Court, it has done all it can short of overturning Hirst completely, and doing that now would potentially tremendously undermine its authority (not to mention the rule of law). But so would sticking to its guns (not that it has any), since continued non-compliance by the UK exposes the lack of any ‘hard’ enforcement mechanism for the Court’s judgments – if a state is willing to swallow the reputational costs of non-compliance, little else can be done short of kicking the UK out of the Council of Europe. And if the UK can openly defy the Court, why can’t Russia, or the Ukraine, or some other semi-democratic European state?

In sum, just like money has value only because we all believe it to have value and act accordingly, so does the integrity of any legal system depend on the good faith of its main players. While the current crisis is far from being of apocalyptic proportions, it is still alarming because of its continued potential to spiral out of control. And while in the short term the escalation of the dispute seems to be in political interest of the UK establishment, they (and we) may all learn to regret it in the long run.