Prisoner votes: Are European courts going too far?

Most people know little of the workings of the European Court of Human Rights

In the post room at the European Court of Human Rights in Strasbourg the files are full and the shelves are piled high.

Every day letters and post cards asking for legal advice and assistance flood in from across the continent.

"We're inundated," says a spokesman for the court, Rod Liddell, "and we have to look into every one."

There is now a backlog of 140,000 cases and a quick tour around the post room illustrates the complexity of the linguistic challenge alone.

The court covers 47 countries and some 800 million people. It is quite separate from, and much larger than, the European Union. But, on occasion, it is equally unpopular.

The latest controversy in the United Kingdom? The court's ruling that a blanket ban on votes for prisoners is illegal - a decision which infuriated the British government and a clear majority of the House of Commons.

"It makes me physically ill to even contemplate having to give the vote to anyone in prison," Prime Minister David Cameron said in Parliament.

Now the European court has rejected a government attempt to overturn the ruling, and given Britain six months to draw up proposals for changing the law.

'Stabilising'

But the vast majority of the cases heard at the European Court every year are nothing to do with the UK. They are from places like Russia, and Turkey, and Serbia - part of a broad remit to protect civil and political rights, stretching back to the aftermath of the Second World War.

Nevertheless there have been calls in the UK for the government to consider withdrawing from the European Convention on Human Rights altogether. Ministers say that is not on the agenda, and court officials believe it would be a grave mistake.

"First of all," says Mr Liddell in his office in Strasbourg, "a strong democracy should not be afraid of some degree of external scrutiny."

"Secondly," he argues, "it must be in the United Kingdom's interest for there to be this stabilising factor, for there to be judgements identifying problems in the operation of the rule of law and democracy in all the countries of the wider Europe."

Two hours up the motorway from Strasbourg a very different court has its seat in Luxembourg. The European Court of Justice is the highest court in the European Union. Its job is to ensure that EU legislation is interpreted and applied in the same way in all member states.

But - like the human rights court - it too is sometimes the focus of withering criticism. Take a recent ruling which means, in effect, that young women drivers will have to pay higher insurance premiums to drive their cars - all in the interest of equality.

"Unpopular though I can well see that it may be," says one of the court's Advocate-Generals, Eleanor Sharpston, "the court took the wording of the legislation that had been approved by the member states."

In other words, don't blame the courts if your politicians agree to legislation that could have unintended consequences.

"The rules of the game are laid down by the member states," Advocate-General Sharpston says. "The court interprets law. That's its function."

'Vague'

When judgements emerge from either Luxembourg or Strasbourg which the UK does not like, "Europe" often takes the collective blame - even though the Court of Human Rights and the Court of Justice are quite different.

Critics of European legal institutions accept that politicians must also take their share of responsibility. But the leader of the Conservative delegation at the European parliament in Strasbourg still argues that the courts are guilty of judicial creep.

"It's the problem of these vague well-meaning charters - such as the convention on human rights and the charter of fundamental rights," Martin Callanan says.

"You can't argue with their basic aims, but the courts become increasingly activist, they get hold of these charters, and they re-interpret them in ways which were never designed by the original draftees."

That is one of the reasons why the UK government has appointed a commission to investigate the case for a British Bill of Rights, as part of its efforts to reform the Strasbourg court. But eurosceptics are frustrated that withdrawal from the court has been ruled out from the start.

"I'm very fundamentalist about this," Mr Callanan says. "I think there's very little public support for some of these judgements and therefore I think the UK government should take quite a hard line."

'Populist nonsense'

There are clearly differing opinions within the coalition government, though, and some Liberal Democrats are uneasy with the nature of the attacks on the role of the courts.

"All governments are going to grumble against negative judgements," says the Lib Dem MEP Sarah Ludford. "But of course the remedy to that is to respect the law in the first place."

Ms Ludford agrees that some of the criticism of both courts is motivated by the fact that they have the word "European" in them.

"But I think it goes beyond that," she emphasises. "Talking about parliamentary sovereignty and that judges should not call politicians to account: that is very dangerous and populist nonsense, quite frankly."

Some change, though, is afoot. It may soon be possible to take a case against the European Union as a whole - not just individual countries - to the court of human rights.

There is talk of reform to make the system simpler and less bureaucratic.

But any change will have to be approved by all member states. No single government, however frustrated it may be, can simply dictate the terms.