The main point made in the British government’s latest response to the European Court of Human Rights (ECHR) on the Harry Shindler challenge to the 15 year non-residence rule, which limits his voting rights as a long term expatriate in Italy, is that he has failed to exhaust his domestic remedies prior to submitting his application to the ECHR.
Such a remedy is demonstrated by the domestic case of James Preston in which he declares that the 15 year rule is unlawful and that his application to be registered as a voter should be reconsidered on the basis of that declaration.
The government argues that it is the case here that such an available claim under domestic law would provide a realistic basis for achieving the result which, it is claimed , the Human Rights Convention requires.
It is interesting that the above argument also reflects the government’s aim, during its current 6 months chairmanship of the Council of Europe, which oversees the ECHR, for a legal reform which would stop the ECHR from overruling the decisions of British judges e.g. on individual immigration cases. According to the UK’s Justice Secretary, the ECHR should concentrate instead on more serious issues of principle concerning a member state, or its courts, or its parliament, which arguably breach the European Human Rights Convention and require an international court.
There is also an article supporting this aim in the on-line Telegraph of 24th November, 2011 by Michael Howard: Parliament must redefine human rights – Britain’s courts should be stopped from slavishly following Strasbourg’s rulings.
One of the British government’s legal arguments in the case of Harry Shindler quotes the Venice Commission’s 24 June 2011 Report on Out-of-Country Voting “which does not consider at this stage that the principles of European electoral heritage require the introduction of such a right” (to universal suffrage). It is note worthy then that in this extract below from the Michael Howard article concerning prisoners’ voting rights, this ommission of the right to universal suffrage can be traced to a British government negotiation in 1949!
“The case of prisoners’ voting rights is particularly instructive. Strasbourg claimed that the UK ban breached the ECHR – but the relevant article contains no mention of universal suffrage. This omission is not an accident: it was won by British negotiation in 1949, a fact that was ignored when Strasbourg ruled. Since that ruling, concerns about judges assuming a legislative function have been increasingly widely expressed”.