coupled with a reference to judicial interventions being “likely to guarantee the
proportionality of restrictions on prisoners’ voting rights”) Söyler, para 39.
71.
The majority in the European Court of Human Rights in Hirst (No 2) found
a violation because Hirst “was directly and immediately affected by the legislative
provision of which complaint is made” and that “the Chamber was justified in
examining the compatibility with the Convention of such a measure, without
regard to the question whether, if the measure had been framed otherwise and in a
way which was compatible with the Convention, the applicant might still have
been deprived of the vote” (para 72). But it regarded the finding of a violation as
just satisfaction and awarded no damages.
72.
As the Court said in Kükükdevici, para 51, it is for a national court, in
applying national law,
“to provide, within the limits of its jurisdiction, the legal protection
which individuals derive from European Union law and to ensure the
full effectiveness of that law, disapplying if need be any provision of
national legislation contrary to that principle (see, to that effect,
Mangold, para 77).”
In the present cases, on the assumptions (contrary to my conclusions), first, that
European law recognises an individual right to vote paralleling in substance that
recognised in the Strasbourg case-law of Hirst (No 2) and Scoppola, and, second,
that the view taken by the majority of the Grand Chamber in Hirst (No 2)
regarding standing to claim a general declaration were to be transposed into
European law, the only relief that could be considered under domestic law would
be a generally phrased declaration that the legislative provisions governing
eligibility to vote in European Parliamentary and municipal elections in the United
Kingdom were inconsistent with European Union law. Thereafter, it would be for
the United Kingdom Parliament to address the position and make such legislative
changes as were considered appropriate. But, for reasons paralleling those given in
paras 40 – 42 above, it appears improbable that the Convention rights would, even
when viewed through the prism of European Union law, involve or require the
granting of declarations in the abstract at the instance of claimants like both
Chester and McGeoch, detained in circumstances summarised in para 1 above,
from whom the United Kingdom Parliament could legitimately, and it seems clear
would, under any amended legislative scheme still withhold the vote.
73.
I reject the submission that the Supreme Court could or should simply
disapply the whole of the legislative prohibition on prisoner voting, in relation to
European Parliamentary and municipal elections, thereby making all convicted
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