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The Relationship of English and European Courts
The Hon Mr Justice Bean, High Court (Queen’s Bench Division), London
Kenyan Judicial Colloquium, Mombasa, 15-18 August 2011
International courts, with universal jurisdiction, have not had a major impact on British legal and political life. The UK recognises the jurisdiction of both the permanent international courts in The Hague, the International Court of Justice and the International Criminal Court, and each of them has one British judge serving on the Court. But the ICJ’s caseload has had few cases involving the UK, and so far no British citizen has appeared before the ICC. So a talk on the relationship of our courts with these two institutions would be rather short, and in any case I am not qualified to give it. Instead I would like to address our relationship with two very different European courts: the Court of Justice of the European Union (CJEU) at Luxembourg, and the European Court of Human Rights (ECHR) at Strasbourg. Each in its different way is playing an increasingly significant part in British legal and political life.
The UK and the Luxembourg court
I began studying law three months before the United Kingdom acceded to the European Communities (then still popularly known as the Common Market). To pave the way for accession, Parliament passed the European Communities Act 1972. Until then the doctrine of parliamentary sovereignty had held sway. Parliament could pass any laws it chose. In Dicey’s well-known words:
“If the legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal”.
To be fair to Dicey, he did go on:
“But legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.”
Section 2(1) of the 1972 Act provided:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures from time to time provided for by or under the Treaties as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”
The effect of this section was, as the EC treaties required, to give Community law precedence over domestic law, even when the domestic law was contained in an Act of Parliament. In the last month, by section 18 of the European Union Act 2011, Parliament has reaffirmed that it is only by virtue of section 2(1) of the 1972 Act, or any subsequent UK Act of Parliament, that EU law has direct effect in Britain. Most lawyers never thought otherwise. I should add that it is in my view quite clear in English law, as the Divisional Court held in Thoburn v Sunderland City Council [2003] QB 151, that no Parliament can bind its successors, and that it is open to Parliament to amend or repeal the 1972 Act.
In the celebrated Factortame litigation the claimants were English companies, most of whose directors and shareholders were Spaniards, who sought to operate deep sea fishing vessels within British territorial waters. Because most of the owners and directors were foreign nationals their boats did not qualify for entry on the register of authorised vessels so as to be allowed to fish. The claimants sought an interim injunction disapplying the domestic statute pending a full trial. Prior to the 1972 Act the English courts would plainly have had no power to grant any such remedy. The House of Lords referred to Luxembourg the question whether European law now required the domestic courts to disapply the statute. The ECJ replied that it did and the House of Lords duly granted an injunction against the Crown to suspend the relevant section of the Merchant Shipping Act 1988 ([1991] 1 AC 603).
When a question of European Union law arises in domestic courts which the court cannot confidently resolve itself, any court below the Supreme Court (which took over from the House of Lords in 2009 as our court of final appeal) may refer the question to Luxembourg for a preliminary ruling, and the Supreme Court must do so. There is usually a delay of about two years before the Court of Justice gives its answer. As with the oracle of Delphi in Ancient Greece, the pronouncements of the Court are sometimes obscure and ambiguous. In the case of the oracle, according to some classical scholars, this was at least partly because the priestess who gave the answers on behalf of the god Apollo was high on drugs. In the case of the CJEU the reason is less interesting, except to lawyers: it is the Court’s invariable practice of giving a single judgment. No concurring or dissenting opinions are permitted. If the court hearing an important case comprised 13 judges we are not told whether the result was reached unanimously or by a vote of 7 to 6. The need to produce a text on which at least a bare majority are agreed must explain the fact that in many cases the crucial reasoning is highly compressed and difficult to understand.
However, where a clear answer is given on a question of European Union law, it is binding on both Parliament and the domestic courts. The relationship of our national courts to the Luxembourg court is therefore subordinate. Our obligation is not simply to take account of the Court’s judgments but to follow them.
The CJEU’s decisions have mainly, though not invariably, been in areas of law which are not in the forefront of party political controversy. These include competition law, intellectual property, free movement of goods, free movement of workers and discrimination on the grounds of sex or nationality. Nevertheless its decisions often have a profound impact on English law. One very recent example will suffice. When Parliament passed the Sex Discrimination Act 1975, prohibiting the different treatment of men and women on the grounds of gender, an exception was made for different treatment “in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk”, provided that the difference was based on actuarial or similar data and was reasonable. Young men crash their cars on average far more often than young women and have therefore been charged more for their car insurance. Conversely, women on average live longer than men so that (for example) a 65 year old man can get a better annuity rate than a 65 year old woman. This statutory exception was in accordance with European secondary legislation then in force. However, on 1st March 2011, on a reference for a preliminary ruling made by the Belgian Constitutional Court, the Grand Chamber of the CJEU ruled that, after a transitional period which will expire in December 2012, the insurance exception will be invalid and men and women must be treated equally. This decision was the subject of a good deal of media comment, most of it unfavourable. But it has not been debated in Parliament. There would be no point in having such a debate. Even if the legislators disagreed with the decision, they could do nothing about it, short of the Government negotiating an amendment to the Treaties. Roma locuta est; causa finita est.
The UK and the Strasbourg court
The relationship of our national courts to the European Court of Human Rights at Strasbourg is quite different and more subtle. British adherence to the European Convention on Human Rights (ECHR) dates back much further than its accession to the European Communities. The UK was one of the founder signatories to the Convention at Strasbourg in 1950, and British lawyers played a significant part in its drafting.
During the first 15 years of the Convention’s life the Strasbourg Court had very little work: one or two cases per year. Its judgments for that period are contained in one volume. Although the UK was party to the Convention as a Member State there was until 1966 no individual right of application by British citizens to the Court. From 1966 to 2000 British citizens could apply to the European Commission of Human Rights, which would decide whether the case was admissible, but the Convention was not part of English domestic law. There was no question of UK statutory instruments, much less Acts of Parliament being struck down as contrary to decisions of the Strasbourg Court. This is not to say that English courts simply ignored fundamental principles of human rights. On the contrary, it was said in many cases in the House of Lords and elsewhere that they could be overwritten only by clear and express statutory provisions.
Before looking at the changes brought about by the Human Rights Act 1998 I should say a word about the workload of the Strasbourg court. Its territorial reach covers the 47 Member States of the Council of Europe – almost the whole continent, including Russia, with a total population of more than 800 million. Each state, from the largest to the smallest, has one judge on the Court. The workload has multiplied by 10 since 1999. At the last count there were more than 150,000 applications pending; but only about 40,000 a year are processed. The backlog is therefore between three and four years. The vast majority of applications are struck out or declared inadmissible; in 2010, of the 40,000 cases processed, only 2600 were substantively decided. The Court is drowning in its own backlog. Proposals have been made to limit its caseload but these have not secured the necessary agreement. If one were to establish a league table of countries who are respondents to applications to the Court, the UK would be 10th. Russia is 1st, Turkey 2nd, Romania 3rd, Italy 4th and various members of the former Soviet bloc are in 5th to 9th positions. Putting it another way, we are second to the Italians in Western Europe. Whether this is because human rights violations in the UK are more frequent than in (for example) France, Germany or Spain, or simply that the British are more litigious, I do not know.
The Human Rights Act 1998 came into force in October 2000. It changed the way in which British judges consider cases involving Convention rights, but it has not created a legal revolution. Lord Bingham, the greatest British judge of my working lifetime, said in a rare radio interview at the time the Act came into force that “we shouldn’t be too ready to assume that everything we have been doing for the last 700 years has been wrong”. By section 2 a court or tribunal determining a question which has arisen in connection with a Convention right must “take into account” judgments or opinions of the Strasbourg court or the Commission. It is therefore no longer necessary, as it was before 2000, for a litigant whose Convention rights have been infringed by the actions of a public authority to take the long and slow road to Strasbourg. The White Paper which preceded the introduction of the Human Rights Bill was entitled “Bringing Rights Home”, which is a good description in a single phrase of the effect of the Act.
By section 3(1)
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
But this does not affect the validity, continuing operation or enforcement of any incompatible primary legislation. If a British court is satisfied that a provision in an Act of Parliament is incompatible with Convention rights it may make a declaration of incompatibility, although it cannot “strike down” the primary statute in the same way as the Supreme Court of the United States has done on occasions since its famous decision in Marbury v Madison. The Government may then lay a “remedial order” before Parliament containing the necessary amendment to the law to give effect to the British court’s decision. But the Government cannot be compelled to do so; and Parliament has the last word. So far the British Government has never refused outright to introduce a remedial order or primary legislation to deal with a declared incompatibility, although, as I shall show, it has in one case shown very great reluctance.
The Human Rights Act has become politically contentious, with some newspapers campaigning for its repeal and even for the UK to withdraw from the Convention. The latter seems highly unlikely. As Dominic Grieve QC MP, Attorney-General in the present British Government, said in an important speech in November 2009, “the substance of the European Convention on Human Rights, and our country’s adherence to it as an international obligation, are a key benchmark of our shared values as a nation.” The Conservative Party’s manifesto in 2010 stated:
“We are establishing a Commission to investigate the creation of a UK Bill of Rights that protects and extends British liberties, that incorporates and builds on all our obligations under the European Convention on Human Rights, and ensures that these rights continue to be enshrined in British law.”
The Conservative/Liberal Democrat coalition government which took office last year has accordingly appointed a Commission on a Bill of Rights to examine the issue. It is notable for containing prominent supporters and opponents of the Human Rights Act (as well as some members who may be described as neutral), and it will be a great achievement if it is able to produce a unanimous report. Fascinating though the subject is, it is not the proper function of a serving judge to take part in that controversy.
I should like instead to focus on five human rights issues which illustrate the evolving relationship between our domestic courts and Strasbourg. They concern (1) retention of DNA samples taken from suspects who are not convicted; (2) the territorial reach of the European Human Rights Convention; (3) jury trial; (4) hearsay evidence; and (5) voting by prisoners. In the first two cases the Strasbourg court’s view has prevailed or is likely to do so; in the third, the Strasbourg court has refused to condemn jury trial; and in the last two cases the ball is still in play.
The DNA database
For some years the police in Britain have taken a DNA sample from people arrested on suspicion of crime. It is not generally controversial that if the suspect is convicted of an imprisonable offence the sample should be added to the police’s national DNA database, which is a very valuable tool in the detection of crime. The question is, what should happen if there is no conviction? By section 64 of the Police and Criminal Evidence Act 1984 Parliament laid down that if the suspect was acquitted or the charge was dropped, the sample had to be destroyed. But in 2001 the Act was amended to provide that the sample may be retained after the suspect is cleared, though it must not be used for anything other than police or prosecution purposes. Following this amendment the Association of Chief Police Officers (ACPO), representing forces throughout England and Wales, introduced guideliines under which the police retained suspects’ DNA samples in all but exceptional cases.
R(S and Marper) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 was a challenge to this policy by way of judicial review. In one case the defendant had been acquitted; in the other, proceedings had been discontinued. The principal claim was that the retention of samples was a violation of Article 8 of the ECHR, the right to respect for the suspect’s private life. I was leading counsel for the police. The Divisional Court, Court of Appeal and House of Lords all found in our favour; so in the UK domestic courts my clients won by 10 judges to nil. The House of Lords’ decision was given in the same week as I became a judge, so that was the end of my participation. The claimants took the case to Strasbourg, where in 2008 the Grand Chamber voted 17-0 the other way. I would love to imagine that the absence of my advocacy played a part in this change of fortune, but it would be self-delusion. The UK Government had the best possible representation at Strasbourg, led by my distinguished colleague Rabinder Singh QC (who is about to be sworn in as a High Court judge himself). The Court simply took an entirely different approach from that of our own courts to the competing public and private interests. They held:
“that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present Applicants, fails to strike a fair balance between the competing public and private interests and that the Respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the Applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.”
It should be noted that the in the 2001 Act Parliament did not direct the police to retain DNA samples in all but exceptional cases: it merely authorised them to do so. The “irreconcilable conflict”, as Lord Dyson was to describe it in the Supreme Court, was not between our Parliament and the Strasbourg court but between our courts and the Strasbourg court.
In the Crime and Security Act 2010, passed just before the 2010 general election, Parliament authorised the establishment of a national DNA Database Strategy Board which was to issue guidance about which samples were ti be destroyed and which could be retained. This passed the buck from Parliament to the proposed Board and delayed the time when the political issue would actually have to be decided. Before the new statutory provision could be brought into force a judicial review challenge similar to that in the Marper case was launched. By the time the case reached the Supreme Court the new government had announced its intention to legislate on the subject for England and Wales along similar lines to the Scottish system, restricting the retention of data to certain violent or sexual offences and only for an initial period of three years, though with the possibility of renewal on application to a court. The Government did not seek to uphold the House of Lords’ decision in Marper, and did not dispute that the ACPO guidelines were unlawful. The Supreme Court granted the claimants liberty to apply for judicial review of the continuing retention of their data if Parliament does not produce revised guidelines within a reasonable time. It seems likely that Parliament will do so, because the Government has in the past month introduced a Protection of Freedoms Bill in the House of Commons, Part 1 of which deals with the retention of biometric data. So this legal dispute will end peacefully. The Strasbourg view has prevailed.
The territorial scope of the Convention
In R(Al-Skeini and others) v Secretary of State for Defence [2008] 1 AC 153 the claimants were the relatives of six deceased Iraqi civilians who had been killed by or in the course of action taken by British soldiers in the period following the completion of major combat operations in Iraq and prior to the assumption of authority by the Iraqi Interim Government. In the first five cases the deceased had been shot in separate armed incidents involving British troops. In the sixth case the deceased, Baha Mousa, had been arrested by British forces and taken into custody at a British military base where he died, apparently as a result of brutal beatings carried out by soldiers at the base. The claimants sought judicial review of the Secretary of State's failure to conduct independent inquiries into, or to accept liability for, the deaths and the torture. The issue was whether the Human Rights Act had extra-territorial effect so as to apply to British soldiers serving in Iraq. The House of Lords held that acts of ECHR Member States outside their own territory could constitute an exercise of their jurisdiction so as to bring Convention rights into play, but only in exceptional circumstances. An established exception was that of embassies and consulates. By analogy, the case of Baha Mousa, allegedly tortured to death while detained at a British military base, fell within the jurisdiction of the UK. His case therefore succeeded. A retired Lord Justice of Appeal, Sir William Gage, subsequently conducted a detailed inquiry into it and is expected to report very shortly. Dismissing the other claims, the House of Lords said that it was not for them but for the Grand Chamber of the Strasbourg court to give the definitive interpretation of the Convention, and in particular whether its extra-territorial scope should be extended beyond what was established in its existing case law.
Like Mr Marper, the other five claimants in Al-Skeini lost in all three English courts: the Divisional Court, Court of Appeal and House of Lords. Like Mr Marper, they succeeded by 17 votes to nil in the European Court of Human Rights. I do not think that this was a surprising outcome. The House of Lords had pointed the way to it in their speeches. The outcome may be unwelcome to the Ministry of Defence but I would be surprised if it led to any conflict between our courts and Strasbourg. As in Marper, I expect the Strasbourg view to prevail.
Trial by jury
The Grand Chamber at Strasbourg does not always endorse the reasoning and decisions of chambers or sections of the Court. This is shown by Taxquet v Belgium, a case which, had it been decided differently, might have put the system of trial by jury in danger, and perhaps even led to the UK denouncing the Convention. Among the 47 Member States of the Council of Europe, 33 have trial of serious criminal charges by judge(s) and a jury. Some have our traditional system of the judge giving directions to the jury, who then deliberate and give their verdict. In others, including Belgium, judges ask specific questions to the jury. But juries do not, as judges do, give reasons for their decisions. Taxquet was convicted by a jury of murder (as it happens, of a Belgian politician). A seven-judge section of the European Court of Human Rights found that his Convention right to a fair trial had been breached, because the jury had not given reasons for its decisions: it had merely given “laconic answers to vague and general questions”. The case was referred to the Grand Chamber. The British, French and Irish Governments all intervened. The UK’s argument was that the traditional system based on judicial directions to the jury, coupled with the jury’s right to ask the judge questions and with the possibility of appeal, is sufficient to constitute a fair trial.
The Grand Chamber agreed with the earlier decision that on the facts of his case M Taxquet did not have a fair trial, in particular because a crucial hearsay statement was anonymous. But it held “that the Convention does not require jurors to give reasons for their decision and that Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict”. Just as well. So what would have been the mother of all judicial battles has been avoided. But the next topic, hearsay evidence, though less well known to the general public than trial by jury, has already led to a heated dispute.
Hearsay evidence in criminal cases
When I was a young barrister the rule against hearsay in criminal trials was both strict and technical. With some venerable exceptions such as dying declarations and events which formed part of the res gestae, and written witness statements admitted by agreement, you had to call a witness with first hand knowledge to prove just about anything.
The Criminal Justice Act 2003 swept away most of these technicalities. In particular, hearsay evidence may be admitted if the relevant witness is dead, too ill to testify, or absent through fear: in the latter case the judge must have regard to the risk of unfairness and the difficulty which the other party will have in challenging the statement. The underlying philosophy is that we should treat jurors as intelligent people who can decide how much weight to attach to hearsay.
Dr Imad Al-Khawaja was a doctor working in Brighton. He was accused of indecent assaults on two of his female patients, who made signed witness statements to the police. Before the trial one of the two complainants committed suicide (though there was no evidence that this was caused by the assault). The prosecution applied to have her witness statement read to the jury at the trial. Without it there would have been no case to answer on that count. The judge granted the application. In his summing-up he directed the jury to bear in mind that they had not seen her give evidence and that the defence had not had the opportunity to cross-examine her. Dr Al-Khawaja was convicted of both charges and sentenced to a term of imprisonment. In a parallel case a Mr Tahery was convicted principally in reliance on the statement of a witness too fearful to attend the trial. The Court of Appeal upheld both convictions, and refused leave to appeal to the Supreme Court. Dr Al-Khawaja and Mr Tahery took their respective cases to Strasbourg, where on 20 January 2009 a Chamber of seven judges held unanimously that each of them had been denied a fair trial (Al-Khawaja and Tahery (2009) 49 EHRR 1), because the sole or decisive witness against them could not be cross-examined. The British Government asked for the case to be referred to a Grand Chamber.
The Strasbourg decision in Al-Khawaja and Tahery was considered by a five-judge Court of Appeal and a seven-judge House of Lords in R v Horncastle [2010] 2 AC 373. Again, there was one case where the sole or decisive witness had died and another where the sole or decisive witness was absent through fear. Both the English appellate courts upheld the convictions. In the Court of Appeal Thomas LJ pointed out that the relevant provisions in the Criminal Justice Act 2003 had largely followed the recommendations of the Law Commission in its report on hearsay evidence; they were thus democratically enacted legislation which substantially endorsed the conclusions of the expert body. Lord Phillips, giving the unanimous judgment of what had by then become the Supreme Court, said:
“The requirement to "take into account" the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. This is such a case.”
The Supreme Court, like the Court of Appeal before it, subjected the seven-judge Chamber’s decision in Al-Khawaja to a detailed and (to English judicial eyes at least) devastating analysis. It effectively added its collective voice to the Government’s request that the Grand Chamber overrules the earlier judgment. The Grand Chamber’s decision is awaited with great interest. If they refuse to budge, the scene will be set for a trial of strength. The House of Lords and Supreme Court have held on a number of occasions that the doctrine of precedent requires us to follow their decisions in preference to a conflicting ruling of the Strasbourg court. The only exception is where, by a statute or remedial order, Parliament decides otherwise. I would be amazed if Parliament did so on this issue.
Votes for prisoners
My last example is an area of human rights law which is not prominent on the radar charts of most lawyers and judges, but has created a political storm. In the UK, a serving convicted prisoner cannot vote in elections. This is not simply because he will not be allowed to go out to a polling station, but also because by section 3 of the Representation of the People Act 1983 Parliament has expressly stated as much. This rule is simple and easy to enforce, but it is not very logical. In the general election of 6 May 2010 a prisoner serving a sentence of a few weeks’ imprisonment for a relatively minor offence could not vote, if the few weeks happened to include polling day. On the other hand a convicted murder or rapist who has been released on licence can vote, as soon as he has taken the necessary administrative steps to have his name restored to the electoral register.
In Hirst v UK 2006) 42 EHRR 41 the Grand Chamber at Strasbourg, by 12 votes to 5, held that the UK’s ban on voting by prisoners was a breach of the requirement in Article 3 of the First Protocol to the Convention to hold “free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Member States do have a margin of appreciation in the implementation of Convention rights, but the blanket ban, imposed irrespective of the length of the sentence or the gravity of the crime, was held to fall outside that margin. (Mr Hirst had been convicted of manslaughter and sentenced to life imprisonment, but the Grand Chamber rejected was not impressed with the argument that his case should be rejected on its facts).
This decision was unpopular in the UK almost across the political spectrum. Consequently, although appropriate noises were made about detailed consideration and consultation, no steps were taken to implement it. The Committee of Ministers of the Council of Europe is the body responsible for ensuring compliance with the Strasbourg court’s judgments. By a resolution passed in December 2009 the Committee expressed “serious concern” that the blanket ban remained in effect notwithstanding the Hirst decision four years earlier. In November 2010, in Greens and MT v UK the Strasbourg court again found the ban to be a violation of the Convention, originating in the UK’s failure to execute the judgment in Hirst, and held that the UK “must bring forward, within six months of the date on which the present judgment becomes final, legislative proposals to amend the 1983 Act…..in a manner which is Convention-compliant”. The present Prime Minister, David Cameron MP, has said that reading this judgment made him feel physically sick.
On 20 December 2010 the present Government announced its intention to bring forward legislation to allow prisoners with a sentence of less than four years to vote, unless the sentencing judge considers it inappropriate in the particular case. Even this is highly contentious. On 10 February 2011, on a backbench debate in the House of Commons, a motion supporting the continuation of the blanket ban was carried by 234 votes to 22. In the light of this the Government referred the Strasbourg decision in Greens to the Grand Chamber. On 11 April the request for a Grand Chamber hearing was rejected and the Government was again given six months to introduce legislation. The House of Commons is only sitting for one week between now and 10 October, and the business announced for that week does not include any measures to give the vote to convicted prisoners.
Meanwhile, the High Court and Court of Appeal had heard yet another judicial review challenge to the disfranchisement of prisoners, R(Chester) v Secretary of State for Justice [2011] 1 WLR 143. Mr Chester, who had been convicted of the rape and murder of his niece, claimed that section 3 of the 1983 Act (the statutory provision denying him the right to vote) was incompatible with the Convention, and sought a declaration that it should be interpreted or “read down” in such a way as to give him the right to vote at any forthcoming election. His counsel invited the court to indicate that legislation to amend or replace section 3 could only be Convention-compliant if it left the disfranchisement of a prisoner to the discretionary decision of the sentencing judge. But that goes beyond interpretation: it would be judicial repeal of a clear and unequivocal statute.
The Court of Appeal upheld a first instance decision dismissing the claim. Laws LJ declined to give an advisory opinion on what forthcoming legislation might legally contain. He said:
“….The nature and scope of measures amending or replacing section 3 of the Representation of the People Act 1983 is likely to be acutely controversial. The controversy will not be about the law, but about the wisdom or unwisdom of social policy. There are deep philosophical differences of view between reasonable people upon the question of prisoners' suffrage. The Secretary of State's justification of the policy underlying [the statute] demonstrates as much.
After an eloquent summary of the political arguments on each side of the debate, he went on:
“I articulate these points not to express my agreement or disagreement with any of them, but to demonstrate that the choices for government in amending or replacing [section 3 of the 1983 Act] are delicate and difficult, and are by no means to be concluded, as it were cut and dried, by the law. It is a political responsibility, and that is where it should remain. The law is that a blanket ban is impermissible, and there must be a discernible link “between the sanction and the conduct and circumstances of the individual concerned” (Hirst para 71). The government will no doubt consider carefully whether compliance with these standards requires a decision-making role in specific cases to be accorded to the judiciary. That is, I think, as much as this court can say.”
I agree with Laws LJ. On some subjects the courts have to leave the decision to the politicians.
11 August 2011 David Bean