These cases related to two prisoners on life sentences for murder challenging the denial of their right to vote. Unlike the Hirst case of 2005, which first established that the UK’s blanket ban on prisoner voting was in contravention of the European Convention on Human Rights, these cases took a different approach of arguing that EU law gave a right to vote to other EU nationals, which by extension allowed UK citizens to vote too.
The Supreme Court threw out both cases, since EU law only applies to local and European elections and does not create the sort of extension that was being argued. In that sense – and that sense alone – the Court did reject ‘European law’ deciding on what has become something of a shibboleth of the UK’s European relations.
Cameron made much of the fact that ‘the European Union has nothing to do’ with the issue of prisoner votes. This rather disregards that the Supreme Court repeated that Hirst was still a valid ruling and in need of implementation by the British parliament. Put differently, the European Convention on Human Rights does not have anything legal link to the European Union, especially while the UK drags its feet on EU accession to the Convention.
I’ve discussed this before, on the way in which British politicians – through ignorance or by design – fail to acknowledge the legal and political realities of the European institutional architecture, and the dangers that brings.
Certainly, in Cameron’s case, he knows full well the difference between ECHR and EU, but it serves his long-term strategy of party management to blur the lines in his pronouncements on the matter.
Cameron finds himself blocked into resisting the ECHR on nuancing votes for prisoners – which he says he doesn’t want to do – while at the same time trying to manage his EU policy of renegotiations-and-referendum. Thus, yesterday’s ruling was taken as evidence of British success in pushing back ‘Europe’ (i.e. beneficial to making a case for successful EU negotiations), even as it embeds the acceptance of Hirst into the British legal system.
As one academic observed to me a while back, most British politicians have no understanding of the difference between EU and ECHR, and this helps explain a substantial amount of the hostility that the latter organisation faces. However, the courts do understand it and the question of prisoner voting is one that is going to continue to be a major thorn in the side of the Conservative party, especially if the ECHR decides to pursue the UK further on its non-compliance.
Common sense looks to be in rather short supply once again.
Dr Simon Usherwood is a Senior Lecturer at the School of Politics, University of Surrey.