some argument or point of principle, we consider that it would be
wrong for this court not to follow that line.”
27.
In relation to authority consisting of one or more simple Chamber decisions,
dialogue with Strasbourg by national courts, including the Supreme Court, has
proved valuable in recent years. The process enables national courts to express
their concerns and, in an appropriate case such as R v Horncastle, to refuse to
follow Strasbourg case-law in the confidence that the reasoned expression of a
diverging national viewpoint will lead to a serious review of the position in
Strasbourg. But there are limits to this process, particularly where the matter has
been already to a Grand Chamber once or, even more so, as in this case, twice. It
would have then to involve some truly fundamental principle of our law or some
most egregious oversight or misunderstanding before it could be appropriate for
this Court to contemplate an outright refusal to follow Strasbourg authority at the
Grand Chamber level.
28.
The Attorney General’s submissions to us in this case have to be considered
in that light. Parliament has required this Court to “take into account” Strasbourg
case-law (Human Rights Act, section 2(1)(a)) and, “So far as it is possible to do
so”, to read and give effect to legislation in a way which is compatible with the
Convention rights (section 3(1)). Parliament has given this Court, if satisfied that
a provision of primary legislation is incompatible with a Convention right, power
to make a declaration of that incompatibility (section 4). The Act itself
contemplates that domestic legislation may not match this country’s international
obligations as established by case-law of the European Court of Human Rights.
29.
It is against this background that the Supreme Court must consider whether
the Attorney General has made good his case that the Court should refuse to follow
and apply the approach taken by the European Court of Human Rights in Hirst (No
2) and Scoppola. The Attorney General took issue with any description of Hirst
(No 2) and Scoppola as “a clear and consistent line of decisions”. But, whatever
else may be said about their reasoning or its outcome, they both clearly stand for
the core proposition, directly applicable to the current general ban on convicted
prisoners’ voting, quoted in paras 20 and 22 above.
30.
At the heart of the Attorney General’s submissions lies the wide margin of
appreciation which States have in this area, and the variety of legislative attitudes
in other States, some according with the United Kingdom’s. These were matters
which the European Court of Human Rights acknowledged, but in the Attorney
General’s submission failed to respect. In support of his submission the Attorney
General makes a number of points. First, the area is one where there is room (in
Laws LJ’s words in the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR
1436, para 32) for ���deep philosophical differences of view between reasonable
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