Electoral Rights in Europe: Advances and Challenges by Helen Hardman & Brice Dickson

Author:Helen Hardman & Brice Dickson [Hardman, Helen & Dickson, Brice]
Language: eng
Format: epub
ISBN: 9781138203914
Google: Wfs3vgAACAAJ
Goodreads: 32573828
Publisher: Routledge
Published: 2017-01-15T08:30:02+00:00

National constitutional challenges and prisoner voting

National constitutional challenges to the case law on prisoner voting boil down to the question of who should decide on sensitive questions: parliaments through democratic processes or courts through their judgments? The debate is not settled and there are valid arguments on both sides. The main aim of this section is to show that the debate is ongoing and that the Court should take it into account when adjudicating cases of particular political sensitivity. Having said that, national parliaments are still left with a wide margin of appreciation as to what system should be adopted. This means that national parliaments remain the key decision-maker in this area. At the same time the Court needs to clarify its case law as to what exactly is needed from the Contracting Parties in order to fully implement its position on prisoner voting rights.

National constitutional challenges focus on the lack of democratic legitimacy of human rights courts to review decisions of democratically legitimate parliaments. These challenges are more pertinent to national constitutional or supreme courts which are able to strike down a piece of legislation.54 Although the ECtHR is not capable of doing so, some of these challenges are still applicable to it. Even though the judges of the ECtHR are elected by the Parliamentary Assembly of the Council of Europe they cannot claim the same level of democratic legitimacy as national parliaments that are elected directly by the people. This does not mean that the Court cannot review laws adopted by national parliament or even national constitutions. There are other sources of legitimacy than democratic legitimacy.55 Nevertheless, the Court needs to address the national constitutional challenges in relation to questions where a decision of the national parliament might be more appropriate than a judgment of the Court.

There is no consensus among commentators as to which organ should have priority when deciding questions of voter eligibility. On the one side there are those who think that prisoner voting should be left to national parliaments to decide. Mr David Davis MP pointed out that:

British courts themselves are clear on the matter. They rejected the claims of Mr Hirst, the axe killer, at every stage. The High Court said in terms that this was ‘plainly a matter for Parliament, not the courts’. To those who say, ‘But we must obey the law’, I say that the historical task of this Parliament is to correct bad law, no matter where it comes from.56

UK domestic law states that the Westminster Parliament should make this decision. Lord Sumption in Chester and McGeoch pointed out that the issue of prisoner voting is a ‘classic matter for political and legislative judgment’.57 This view is based on the principle of parliamentary sovereignty. Arguably, such domestic principles are not directly applicable in relation to the ECtHR. That Court is, however, prepared to be more deferential if there has been a proper parliamentary debate on the issue. But of course the role of the Convention is to prevent a dictatorship of the majority and to limit the power even of democratically elected governments.

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