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Prisoners’ right to vote: the blurred line between the European Convention on Human Rights and the European Union

08 Feb 2011
Open Europe has today published a briefing highlighting how human rights law is now locked in at the European level in two separate, but linked, forms: the European Court of Human Rights and the European Union. It argues that even if the UK were to withdraw from the ECHR, it would still leave a huge number of human rights cemented at the EU level. This is because the EU itself has a catalogue of justiciable rights and is also set to join the ECHR as a separate entity in the future.

If the UK Government wants to avoid potential conflicts between national law and European human rights law – including on prisoners’ voting rights – it would therefore have to seek strong carve outs from both the ECHR and the EU’s own catalogue of human rights, the Charter of Fundamental Rights.

Open Europe Research Director Stephen Booth said:

“The EU’s future accession to the European Convention on Human Rights combined with the EU’s own human rights charter has blurred the lines between the case law of the European Court of Human Rights and the EU courts."

“While basic rights should be protected, this confusing judicial fudge could see extensions to human rights law forced on the UK via the backdoor of the EU. It could also make it far more complicated for the UK to opt out of human rights legislation in future.”

“If the UK truly wants to repatriate control over human rights legislation and avoid increasing numbers of lawsuits, it must achieve cast-iron opt-outs from the European Convention on Human Rights and the EU’s own rights legislation.”

To read Open Europe’s briefing click here: http://archive.openeurope.org.uk/Content/Documents/PDFs/EUECHRprisoners.pdf

Key points:

· Prisoners are currently denied the right to vote in all elections in the UK, including general elections, European Parliament elections and local elections. If MPs vote to reject the Government’s suggested compromise to comply with the European Court of Human Rights’ ruling on granting voting rights to prisoners, the UK will need to find an alternative way forward.

· One possible option that has been suggested is the UK’s withdrawal from the European Convention on Human Rights (ECHR), which would allow the Government to ignore the Court’s rulings. Despite the popular misconception, the UK could potentially withdraw from the ECHR and remain a member of the EU. However, withdrawing from the ECHR would still leave a huge number of human rights locked in at the EU level.

· This is because first, the EU is set to join the ECHR in its own right and as a separate entity (although the UK has a veto over this) and secondly, the EU has its own catalogue of justiciable rights – the so-called Charter of Fundamental Rights, enshrined in the Lisbon Treaty. The Charter allows citizens to contest rights set down in EU law at the European Court of Justice and, in future, possibly also the European Court of Human Rights (when the EU accedes to it).

· This complicated arrangement will further blur the lines between the case law of the European Court of Human Rights, EU and national courts, as argued by the Lord Chief Justice. It will also make it increasingly difficult for the UK to negotiate a carve out from European human rights legislation.

· The EU’s so-called “Stockholm Programme”, a five year programme for EU justice and home affairs legislation, will also grant EU citizens additional rights and the European Court of Justice will ultimately be responsible for enforcing them.

· If the UK Government wants to avoid future conflicts between national law and European human rights law – and new lawsuits – now is the time to seek cast-iron opt-outs:

- Firstly, from the ECHR;

- And secondly, along the lines of the original Conservative Party manifesto, from the EU’s Charter of Fundamental Rights to avoid having to apply new EU laws amended to fulfil European Court of Justice or European Court of Human Rights rulings on rights.

· To illustrate why this matters: withdrawal from the ECHR would allow the UK to ignore ECHR rulings on prisoners votes when it comes to general elections. However, as voting rights in European Parliament and local elections are covered by EU law as well as national law, their application in the UK could in future be challenged at the ECHR or the European Court of Justice.

· The EU treaties state that the EU-wide right to vote in European Parliament elections are subject to “the same conditions as nationals of that state”. But it remains unclear how the various overlapping rights would be interpreted by the ECJ or the ECHR against the UK’s “blanket ban” on prisoners’ voting rights.

NOTES FOR EDITORS

1) For more information, please contact the office on 0044 (0)207 197 2333, Mats Persson on 0044 (0)779 946 0691 or Stephen Booth on 0044 (0)788 162 5889.

2) Open Europe is an independent think-tank calling for reform of the European Union. Its supporters include: Sir Stuart Rose, former Chairman, Marks and Spencer plc; Sir Crispin Davis, Former Chief Executive, Reed Elsevier Group plc; Sir David Lees, Chairman, Tate and Lyle plc; Sir Henry Keswick, Chairman, Jardine Matheson Holdings Ltd; Lord Sainsbury of Preston Candover KG, Life President, J Sainsbury plc; Sir John Egan, Chairman, Severn Trent plc; Lord Kalms of Edgware, President, DSG International plc; Hugh Sloane, Founder, Sloane Robinson.

For a full list, please click here: http://archive.openeurope.org.uk/Page/Supporters/en/LIVE

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