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Prisoner Disenfranchisement in the United Kingdom and the Scope of EU Law: United Kingdom Supreme Court

Abstract

On 16 October 2013 the United Kingdom Supreme Court delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of the disenfranchising provisions with the European Convention on Human Rights (‘the Convention’), and whether those provisions breached a right to vote acquired by the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, acknowledging the incompatibility of the relevant legislation with Article 3 of Protocol No. 1 of the Convention but declining to issue a declaration of incompatibility. The Supreme Court further held that EU law does not confer upon EU Citizens a substantive right to vote in European Parliamentary elections.

The cases are significant on a number of levels. First, the nuanced arguments advanced before the Court tested the jurisdictional scope of EU law and its capacity to confer rights upon EU Citizens in the absence of cross-border movement. The claims thus held the potential to widen the jurisdiction of EU law along the trajectory outlined by such ECJ case-law as Ruiz Zambrano and Fransson. Secondly, those arguments probed the extent to which the European Charter of Fundamental Rights (‘the Charter’) imports Strasbourg jurisprudence into EU law and thus creates an alternative mechanism through which to enforce Convention rights. Finally, the decision evidences the constitutional tensions that emanate from discordant interpretations of fundamental rights by national and supranational courts from discordant interpretations of fundamental rights by national and supranational courts.

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* PhD, University of Edinburgh. With thanks to Aidan O'Neill QC (counsel for McGeoch) for sharing his insight into the cases, and to Bastian Michel for helpful comments on an earlier draft.

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European Constitutional Law Review
  • ISSN: 1574-0196
  • EISSN: 1744-5515
  • URL: /core/journals/european-constitutional-law-review
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