per incuriam, so to speak, in 1969, without properly considering the justification
for it as a matter of penal policy. The absence of debate to which the court referred
reflects the attention which had already been given to the issue by the Speaker’s
Conference, and the complete consensus on the appropriateness of the voting ban.
137. Without the decisions in Hirst and Scoppola, I would have held that the
question how serious an offence has to be to warrant temporary
disenfranchisement is a classic matter for political and legislative judgment, and
that the United Kingdom rule is well within any reasonable assessment of a
Convention state’s margin of appreciation. However, the contrary view has now
been upheld twice by the Grand Chamber of the European Court of Human Rights,
and is firmly established in the court’s case-law. It cannot be said that the Grand
Chamber overlooked or misunderstood any relevant principle of English law. The
problems about the view which the court ultimately came to were fairly pointed
out in both cases in the course of argument. Whatever parliamentary consideration
may or may not have been given to the issue in 1969, it has undoubtedly received a
great deal of parliamentary attention more recently, in debates which were drawn
to the Grand Chamber’s attention in Scoppola but made no difference to its view.
There is no realistic prospect that further dialogue with Strasbourg will produce a
change of heart. In those circumstances, we would be justified in departing from
the case-law of the Strasbourg Court only if the disenfranchisement of convicted
prisoners could be categorised as a fundamental feature of the law of the United
Kingdom. I would regard that as an extreme suggestion, and in agreement with
Lord Mance I would reject it.
138. A wider and perhaps more realistic assessment of the margin of
appreciation would have avoided the current controversy. But it would be neither
wise nor legally defensible for an English court to say that article 3 of the First
Protocol has a meaning different from that which represents the settled view of the
principal court charged with its interpretation, and different from that which will
consequently apply in every other state party to the Convention.
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