Legal constitutionalism, political constitutionalism and prisoners’ right to vote

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This post is an extract from Oxford University Press’s latest public law newsletter. In it, Professor Robert Thomas and I comment on the recent controversy concerning rulings by the European Court of Human Rights on the right of prisoners to vote. Professor Thomas and I are co-authors of the undergraduate textbook Public Law, published by Oxford University Press. 

Our textbook, Public Law, is organised around three themes that are crucial to the UK’s contemporary consititutional arrangements. One of them is the distinction and relationship between legal and political forms of constitutionalism. Students often find such apparently theoretical or abstract notions off-putting: but the current controversy surrounding the right of prisoners to vote in elections is an excellent vehicle for exploring such ideas.

As is well-known, the Strasbourg Court held in Hirst v UK (No 2) that the UK’s blanket ban on voting by prisoners breaches Article 3, Protocol 1 of the European Convention on Human Rights. That was also the view of the Scottish Registration Appeal Court, which, in Smith v Scott, issued a declaration of incompatibility under the Human Rights Act in respect of the relevant legislation. Several years on, the offending legislation has not been amended or repealed—although the Government, hard up against the deadline set by Strasbourg, has now published a draft Bill setting out various options (including no change).

In his recent statement to the House of Commons on prisoner voting, the Justice Secretary, Chris Grayling MP, said that he takes his “obligation to uphold the rule of law seriously”, but that it “remains the case that Parliament is sovereign”—the implication being that it need not jump when the courts tell it to. In these remarks, Grayling (intentionally or otherwise) encapsulates the tension between the competing claims of legal and political constitutionalism.

The perceived deficiencies of the former and strengths of the latter are postulated in increasingly sharp terms by much of the political rhetoric surrounding not only the prisoner voting issue, but other bêtes noire of those opposed to judicial “interference”. Consider, for example, the Prime Minister’s speech in November proposing to make judicial review harder to access in order to curb (what is perceived to be) unwarranted judicial meddling in the business of government.

It is always difficult to judge whether phenomena such as these are merely transient flashes in the pan or evidence of a more profound shift. For some time now, the pendulum has been moving—propelled most obviously by the growth of judicial review and the adoption of the Human Rights Act—in the direction of legal constitutionalism. It may be, however, that it is beginning to move back, as the majoritarian case in favour of Parliament’s legislative freedom is stated with increasing boldness, against the backdrop of a relatively activist domestic and European judiciary.

When the second edition of Public Law is published in 2014, the report of the Commission on a Bill of Rights will have been published and picked over, and Hirst—along ­with the Prime Minister’s judicial review proposals—might or might not have been implemented. As we state in the book, and as we frequently remind our own students, it is meaningless to ask whether the UK adheres to legal or political constitutionalism. The constitution of any advanced democracy includes both legal and political forces and constraints; the question is not whether the UK has a political or legal constitution, but the appropriate balance between political and legal forces and constraints in any particular context and the wider lessons to be drawn for our understanding of the constitution. Exploring developments such as prisoners’ right to vote will be key to assessing the contemporary balance between these two traditions.

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