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The Human Rights Act and ECHR as a threat to UK sovereignty

Euroscepticism and penal populism in the British Parliament: Parliamentary debates on the prisoners’ right to vote

Euroscepticisme et populisme pénal au Parlement britannique : débats parlementaires sur le droit de vote des prisonniers
Anne Cousson

Résumés

La question du droit de vote des prisonniers a été une source de conflit entre le Royaume-Uni et la Cour européenne des droits de l’homme suite à l’arrêt Hirst (2005), dans laquelle la Cour a estimé qu’une restriction générale et automatique du droit de vote des prisonniers constituait une violation du protocole n°1 de la Cour européenne des droits de l’homme. L’origine européenne de la décision a particulièrement irrité le monde politique au Royaume-Uni, et très rapidement, un rejet bipartisan se fit jour au parlement britannique. La décision de la CEDH se retrouva sous le feu des critiques, venant à la fois des gouvernements de 2005 à 2022, et de la presse britannique. Les critiques portaient sur l’impression d’une érosion de la souveraineté du parlement national, et sur la question de savoir si le droit de vote des prisonniers devait être compris fondamentalement comme une question de politique pénale au niveau national, ou comme une question de droits humains au niveau international. Cet article examine les discours politiques sur cette question à travers une analyse qualitative des débats à la Chambre des Communes sur la décision Hirst et sur les tentatives de réformes qui ont suivi. Pendant ce bras de fer qui a duré 12 ans, les députés à la Chambre des Communes ont souvent pris la parole sur cette question afin de signaler leur euroscepticisme, entretenant souvent la confusion entre le Conseil de l’Europe et l’UE. On peut estimer que beaucoup ont versé dans une forme de populisme pénal, mettant face à face les citoyens britanniques respectueux des lois, et les criminels condamnés (une minorité impopulaire) protégés par des juges appartenant à une « élite » étrangère. Pour les trois principaux partis, la question pouvait être soit un moyen de détourner l’attention de leurs divisions internes sur le Brexit, soit au contraire une question embarrassante ayant le potentiel de créer ou d’exacerber des divisions internes.

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Introduction

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1British political discourse today presents human rights in two very different lights. On the one hand, they are an ideal to which the whole world should aspire: respect for human dignity, justice and equality. On the other, on a national level, the press often presents them as a tool for criminals and terrorists to escape justice with the help of corrupt lawyers making money off the back of taxpayers.1 They have a further facet making them even less palatable to British politicians: the most high-profile human rights cases are decided by an international court, the European Court of Human Rights (ECtHR) which, even though it has nothing to do with the European Union (EU) is often mentioned in the same breath as EU institutions. In a country where membership of and relationship to the European Union has been a political minefield for decades, this is no compliment.

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2Nowhere is this dichotomy more visible than in the controversy surrounding the most high-profile British case at the ECtHR of the past few decades: the Hirst case.2 The case was about a blanket ban on voting for prisoners in the UK, which the Court considered as a violation of Article 3 of the First Protocol of the European Convention on Human Rights (ECHR). The decision was heavily debated in both the House of Commons and the House of Lords, with a large majority of MPs concurring to reject the Court’s finding. Studying these parliamentary speeches is therefore an interesting vantage point from which to observe how MPs envisage the relationship between the UK and European institutions in general.

3Between 2005, when the Court found against the UK in Hirst and 2017, when the Committee of Ministers of the Council of Europe accepted the British government’s changes as enough to satisfy the requirements of the protocol, the relationship between the UK and the EU had dramatically altered. The time it took for the debate to be concluded, therefore, allows us to study the evolution of the nature of Euroscepticism in the British Parliament as applied to a specific topic of penal policy. The question of what rights prisoners hold is a particularly apt example of where international law and national politics interact.

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4The case of Hirst was highly visible: it was widely reported on, with vitriolic responses, especially coming from the tabloid press and politicians.3 The analysis of media responses to the case provide a solid case study of the broadly negative coverage of human rights cases in the UK press, particularly in right-wing tabloids. The challenge that the UK’s refusal to comply posed to the authority of the ECtHR and its consequences was further analysed to understand how the international legal order was changed by the process.4 The mediatic and legal interests came hand in hand with an intense political interest, including debates in the two Houses of Parliament. Previous studies show that the case became such a high profile one as it stands at the intersection of two major areas of concern in contemporary British politics: Euroscepticism and penal populism. 5

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5The former has been a pivotal aspect of British post-war politics, and its evolution has followed both European and national political changes. Since the first period of the negotiation of the British membership of the EU, the fault lines of Euroscepticism have evolved, and the 2016 referendum constitutes a turning point.6 Euroscepticism is not a simple yes/no to Europe position: it is a challenge to the UK’s role in and relationship with Europe understood widely.7 Rather than being the sole concern of specific groups, it refers to rejections of all or parts of the efforts towards European integration. In this context of the multiple forms of Euroscepticism, the ECtHR can be used deliberately by politicians to express their rejection of the EU, disregarding the fact that those are two distinct institutions.8 It is not, therefore, limited to the question of EU membership, but rather of the rightful balance of power between the UK government and European institutions.

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6Populism itself is a concept which has been used by a variety of researchers over the past decades to describe many kinds of political movements and/or political leaders. It is often presented in opposition to the development of democracy and described as a tendency to illiberalism. Because of this wide variety of uses for the term “populism”, its definitions have tended to vary widely in the literature. The minimal definition, summed up by Cas Mudde, is that it is a “thin ideology” where a corrupt elite is opposed to a pure people.9 In other words, populism is not defined through its positions on policy subjects like immigration or economic policies per se, although they can be central for some political movements, its minimal component is a distrust of political and other elites. Because of this, it can be hard to draw a line between clearly populist movements and others. In his analysis of the relationship between international courts and populism, Erik Voeten indicates for instance that some people would call the Conservative Party under Cameron and May “populist”.10 Rather than attempting to characterize the different parties or groups of MPs who intervened in the debate as “populists” or not, this article focuses on populist features of discourse, that is to say on whether speakers mobilised this minimal frame of an opposition between people and elite.

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7Penal populism is a specific form taken by populist policies, it is “a broad constellation of expressive penal policies that amplify the popular discontents of the general public and prioritise the electoral prospects of a policy over its penal effectiveness”.11 In other words, it is a concept that includes many forms of public policy where what politicians perceive to be public opinion matters more than actual analysis of the proposed policy. It has been used as a part of the political discourse on law and order since at least the 1990s, when it started growing in influence. It is a form of populism focusing on aspects of penal policy and linked to so-called “tough” attitudes to crime, that is to say attitudes geared towards punitive measures, emphasizing in particular custodial sentences. The question of the fundamental rights of prisoners is thus included in such a debate, as the punitive aspects of custodial sentences is emphasised.

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8Colin Murray identified recurring themes in the arguments of the opponents to prisoners’ voting.12 Building on this work, which isolated the central forms of parliamentary discourse on the issue while underlining the historical and political factors underpinning it, this article tries to investigate the relationship between two of the four aspects Murray identified: Euroscepticism and penal populism. Because most MPs disagreed with the ECtHR decision, as the result of the vote on the February 2011 motion shows, Euroscepticism is not a sufficient factor in itself to explain parliamentarians’ positions. Further analysis is therefore needed, which should take into account both intra-party and inter-party dynamics of the three parties that were in government at some point in the period. Our hypothesis is that, in the context of a highly divisive issue, that of Europe, penal populism was used as a way to appeal to the largest possible part of the voting public. This relationship should depend on the extent to which the topic of Europe is divisive inside the party, and on the attachment of each party to “tough” penal policies.

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9In order to understand the values at play, we focus on the analysis of parliamentary speeches. These debates provide a wealth of text to study to understand the position of MPs. Indeed, the expressive value of parliamentary discourse, through which MPs hope to reach both their colleagues and their voters, allows us to study the varied positions of MPs within the institutional constraints of the British Parliament.13

10The debates included in the analysis focus directly on the right to vote for prisoners between the time of the Hirst decision in 2005 and the announcement of the government policy accepted by the Council of Europe in 2017. Passing mentions of the case were not studied as they, as a rule, did not allow the demonstration of the variety of MPs’ positions on the issue. The full list of the debates used in the corpus is available at the end of the article. The size of the debates varied, the longest one being the debate around the backbench motion introduced on February 10, 2011, and other speeches studied being short oral answers to questions.

11Each speaker’s position on the right to vote for prisoners was identified. Most MPs were found to be in favour of keeping the status quo, so the nature of the arguments used was identified, with a specific emphasis put on whether they corresponded to penal populist frames. We tried to ascertain whether this would correlate with more or less Eurosceptic ideas, by collecting information on the speaker’s position on the European Union and European institutions more widely.

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12Debates in the House of Lords were used as a point of comparison. As a rule, the House of Lords tends to be more pro-European and pro-human rights, and so tended to favour national legislative change towards enlarging franchise for at least some prisoners.14 The nature of their arguments was compared to that of the MPs in order to ascertain their respective positions.

13After a brief reminder of the different elements of the Hirst case and its developments and conclusion, this article will give an account of parliamentary debates. For this case study, mentions of Europe were overwhelmingly negative in the Commons, with different tactics being used by speakers to demonstrate the specific demands of their own brand of Euroscepticism. Most MPs showed a form of penal populism, with a clear distinction between a British people on the one hand, and, on the other hand, two outsider groups: prisoners and Europe. Finally, the article examines the complex intra-party divisions and dilemmas on this highly sensitive topic.

A twelve-year stand-off

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14The Hirst decision reactivated a long-lasting debate on the franchise of prisoners. Murray underlines that depriving prisoners of their right to vote was not as obvious a choice as MPs have tended to present it.15 At different times, some categories of prisoners could vote, some could even be elected, with Bobby Sands being one famous example. The systematic disenfranchisement of prisoners only dates back to the Representation of the People Act (ROPA) 1983 and its subsequent reforms.

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15The ECHR itself did not include the right to vote as a fundamental human right at first. It was only included in the First protocol, and, even there, suffrage was recognized as a qualified right which states should be able to control. The UK governments and lawyers were instrumental in negotiating the Convention, with Winston Churchill himself providing the impetus behind it. However, they were also careful with the text, hedging most of its articles with exceptions and helping craft the protocols which would keep the most sensitive questions out of the main text of the Convention. The First Protocol was written in 1952 and became effective in 1954. Article 4 of the protocol provides for territorial exceptions in the application of this right. Hence, the right to free elections only appears in a protocol and is hedged with exceptions, which shows that it was not given the same status as other rights. Its implementation is more open to national political debate, which made sense in the context of decolonisation and the beginning of the Cold War.16

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  • 18 House of Commons Debates, November 3, 2010, c. 921.

16After the ECtHR’s judgment in the Hirst case in 2005, the British government opened a consultation process. Two such consultations happened between 2006 and 2009, with no legislative result.17 Both the majority of the press and the government expressed profound disagreement with the Court’s decision. This did not change with the arrival in power of the Liberal-Democrat/Conservative coalition, with Prime Minister David Cameron famously saying in 2010 that the idea of prisoners voting made him “physically ill”.18 In February 2011, a backbench cross-party amendment was introduced which resulted in the ban being confirmed by the Commons. This debate was central in the political definition of the issue: it allowed speakers to set out their arguments publicly, and to make a show of national unity against the ECtHR’s decision. It is also the longest debate in the corpus focusing only on the policy. Although it was supposed to set out definitively the opinion of Parliament, it did not give satisfaction to the Council of Europe. Therefore, the question came back several times in Parliament, both in the Commons and in the Lords, through questions being asked by members or amendments proposed. In 2013 and 2014, Conservative MP Christopher Chope introduced two private member’s bills to reinforce the ban on prisoners voting, both of which were abandoned with very little debate. On the whole, the debate resurfaced regularly on the national stage, but to no avail as no definitive decision was taken.

  • 19 For instance, in 2000, the British government published a statement authorizing homosexual (...)

17The ECtHR was presented as abusing its position. However, the Council of Europe’s Court decisions are not binding: national parliaments and governments are left to debate how best to remedy the violations found by the Court. Although legislative reforms might be necessary, in some cases governments make minor corrections without even referring to the legislature.19 This did not happen in the Hirst case, when debate was intense and involved a variety of forms of Euroscepticism.

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18Every time the press took up the topic, it was with characteristic lack of measure, especially for tabloids. For instance, the Daily Mail mentions the nature of the plaintiff’s crime, in a sensationalistic manner, in a lot of the titles of the articles covering the news.20 Even more serious publications regularly published articles that attacked the legitimacy of the Court.21

  • 22 Frodl v Austria, April 8, 2010; Greens and M.T. v the UK, November 23, 2010; Scoppola (N°3) v Italy(...)
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19In the meantime, the question continued being raised at the ECtHR through other complaints against the UK and other countries.22 In each case, the Court refined its criteria, thus limiting the range of application of the decision, giving the British government hopes that they might be able to get away with not changing much. In particular, the Court stated that a wide margin of appreciation should apply to the question of franchise. The margin of appreciation was at the heart of the Brighton Declaration of 2012, initiated by the UK as it was chairing the Council of Europe, and the other member states agreed to a common declaration insisting on the need for a stronger recognition of national sovereignty.23

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20However, the Committee of Ministers of the Council of Europe kept asking the British government to hold a meaningful parliamentary debate and make amendments to the law.24 The Committee agreed that the scope of these amendments could be very limited: disenfranchisement of prisoners in itself was not the issue, it was its blanket nature that the ECtHR objected to, as well as what it called a lack of meaningful debate by the legislature. As an answer to these demands, the British government communicated to the Council of Europe that the matter was under consideration without further precision. The Conservative government was re-elected in May 2015, this time with enough of a majority to do without its coalition partners. The 2010-2015 Liberal Democrat-Conservative coalition had been divided on the issue: the Liberal Democrats were in favour of enlarging the franchise while the Conservatives refused it, the result being a delay in decision-making.

  • 25 Council of Europe, Committee of Ministers 1302nd meeting, December 5-7, 2017.

21Finally, in September 2017, the government communicated to the Council of Europe a series of very limited propositions which would enfranchise some prisoners. The Committee of Ministers of the Council of Europe, meeting in December of the same year, found that this was enough to fulfil the requirements set out by the Court.25 The new administrative rules indicated that some people who had been convicted and were serving custodial sentences could vote. There were two categories: prisoners who were released on licence, that is to say who were allowed to leave prison during the day in order to take part in a number of activities aiming at their rehabilitation, and prisoners who were serving their sentence on home detention. Both those groups, the government said, were likely to be those sentenced to short custodial sentences. Furthermore, judges would have to state explicitly when delivering their verdict that a custodial sentence implies disenfranchisement, making it clear to the person convicted. This, the Committee of Ministers argued, was enough to end the blanket nature of the ban, and therefore to bring a satisfactory end to the Hirst affair and the following cases. By then, the British government was in the midst of delivering Brexit, a priority which superseded many policy issues in the years immediately following the 2016 referendum.

Eurosceptic frames in the debates

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22The Hirst case and its continuations came at a pivotal moment for the European problem in the British political debate, as, at the same time, there was growing discontent against the EU in the UK, especially in the Conservative Party.26 MPs defended national sovereignty against encroachment by European institutions, an approach that is clearly visible in the prisoner enfranchisement debates.

  • 27 House of Commons Debates, February 10, 2011, c. 508.
  • 28
  • 29 House of Commons Debates, February 10, 2011, c. 563-564.

23Despite the rhetorical insistence on fighting against undue European influence, European institutions themselves were ill-defined, with the EU and the Council of Europe frequently conflated by politicians, meaning that they were often mentioned in the same breath. The conflation was not systematic and, in Parliament, it was always corrected either by the MP delivering the speech or by outside interventions. Explicit conflation, that is to say when the speaker was deliberately speaking as if Brussels and Strasbourg were the same thing, was rare. For instance, Ian Davidson interrupted a speech favourable to enfranchisement by fellow Labour MP Denis MacShane, by saying “Speak up for Brussels!” MacShane’s immediate response was to correct his colleague and point at the confusion.27 Despite this type of intervention, where speakers are explicitly reminding their audience that a difference exists, conflation does link the Strasbourg Court and the EU discursively, hence deliberately showing them as a similar enemy, which is a phenomenon visible in the press as well, as Zoë Jay has shown.28 Indeed, later on, when it was Mr Davidson’s time to speak, he made it clear that his use of the name of the Belgian capital was a metonymy for any European authority : “There is a Brussels mindset, irrespective of where it is physically located, that basically says that European is best and that there is a political elite in Europe that knows better than we do in this country how our country should be run”.29 Davidson himself was a leading Labour Eurosceptic who later became part of the Vote Leave campaign.

  • 30 Ibid., c. 538.

24Subtler types of conflation are harder to correct in the Chamber and easier to use as rhetorical devices against the EU. The difference between the two institutions is blurred. For instance, speakers might use “European Court” instead of “Human Rights Court”, or attempt a comparison with the European Court of Justice of the EU. Thus, the focus is on a suspicion of abuse of power by an unpopular institution, the EU, and the nature of the case, that is to say the definition and protection of human rights, is relegated to the background. A typical example of that would be Philip Hollobone’s speech during the February 2011 backbench debate. A Eurosceptic Conservative backbencher and one of those who had introduced the motion, he attacked his own government directly in his concluding remarks by declaring that “they [wanted] European issues to go away and [did] not want to trouble the electorate with them”.30 The structure of his speech allows us to see how the relationship between the ECHR and the EU is constructed. He begins by focusing on the subject matter at hand and opposing the extension of the franchise for prisoners for two reasons: because his constituents oppose it, and because he considers that the number of people who would be enfranchised, as well as the nature of their crime, are excessive. After setting out his opinion on the matter at hand, he extends his criticism to the ECtHR itself, by calling it ineffective and lacking in legitimacy, and affirming it was built thanks to the UK in the first place. Finally, he extends his criticism to the whole European policy of the Coalition government. Nowhere does he say that the EU and the Council of Europe are the same, or even that the ECtHR is an instrument of the EU. However, he creates a logical structure which allows him to present the debate about the right to vote for prisoners as merely a piece in the larger puzzle of British European policy.

  • 31 House of Commons Debates, November 2, 2010, c. 744.

25Correcting the conflation, on the other hand, allows the speaker to draw a clear line of separation with the EU while defending the ECtHR’s decision. Mark Harper, then Parliamentary Secretary for Political and Constitutional Reform, made such a correction in November 2010, for instance. When Nigel Dodds, a Eurosceptic DUP MP, noted, not without a hint of sarcasm that “it has not been a good couple of days for the Government as far as Europe is concerned”,31 because of the announcement of the new EU budget, Harper responded by pointing at Dodds’ conflation explicitly, therefore separating the government’s EU policy from their response to the Hirst case.

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26This kind of explicit correction exemplifies how the Conservative Party leadership had tried to use the issue of the Hirst case as one tactic to “accommodate intra-party dissent” on European policy.32 The leadership had announced that backbenchers would have a free vote in this debate while frontbenchers were asked to abstain in the February 2011 debate. In practice this was supposed to function as a sort of safety valve for Conservative Eurosceptics, who could express their distrust and dislike of the EU through a vote with very little practical effect. Philip Hollobone’s direct attack, on the one hand, and Mark Harper’s correction of the conflation, on the other, point to the use of the debate as a proxy for a wider European policy.

  • 33 House of Commons Debates, December 5, 2014, c. 612.

27As the debate continued, after the particularly intense period between 2010 and 2011, this projection of the EU unto the prisoners’ enfranchisement question became even more explicit. For instance, in December 2014, veteran Conservative backbencher Christopher Chope introduced a Private Member’s Bill to prevent prisoners from voting. Labour Shadow Minister for Justice, Andy Slaughter, immediately answered that the proposal would be only a repetition of ROPA 1983, and that he “suspect[ed] that the Bill [had] not much to do with prisoners voting, and rather more to do with the European Convention on Human Rights, the European Court of Human Rights and, probably, the Council of Europe and the European Union”,33 which Chope readily admitted. He himself had already linked the ECtHR and the EU in 2013 in a debate about a repeal of the Human Rights Act and possible exit from the Convention system by mentioning that people had voted for Eurosceptic parties. MPs were aware of the difference between the institutions but chose to bind them together because they appeared to diminish Britain’s sovereignty.

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  • 35 House of Commons Debates, February 10, 2011, c. 575.

28Sovereignty is a prime concern for Eurosceptics, wherever they are on the wide spectrum of Euroscepticism. This is a recurring topic tackled both in debates about the EU and about the ECHR which appear naturally in the prisoners voting debate. In February 2011, MPs came back to it repeatedly. In this context, the term sovereignty can refer first to a form of independence from external influence.34 For instance, Priti Patel talked about “unelected and unaccountable judges in Europe” who were “undermining the sovereignty of this Parliament”.35

  • 36 House of Commons Debates, November 2, 2017.
  • 37 Ibid., c. 1013.

29This emphasis on sovereignty had virtually disappeared when, in November 2017, the Lord Chancellor David Lidington announced the administrative changes which the Council of Europe ultimately accepted.36 Because these changes did not require a vote, the debate was much shorter than in February 2011. Only 16 MPs took part in it, including the Lord Chancellor and the Shadow Lord Chancellor David Burgon. Of those 16, only one (Conservative Philip Davies) criticized the sovereignty of the ECtHR and the role that its judges played, as opposed to the elected national parliament. Even opponents of the measure centred their arguments on the content of the measure (this includes more or less relevant remarks, like that of Sir Desmond Swayne who suggested that “As a quid pro quo, will my right hon. Friend restore penal servitude with hard labour?”37). By 2017, the issue of the ECtHR had dropped to the background of the more pressing Brexit debate. Interestingly enough, Brexit was the elephant in the room then: it was not mentioned, despite the priority it had taken in national politics and the ubiquitousness of the conflation in previous years. MPs concentrated their use of the argument of parliamentary sovereignty against European institutions in debates about the withdrawal from the EU, and it disappeared from their reactions to the Hirst decision.

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30This institutional definition of sovereignty as a question of balance of powers is not the only one that MPs put forward. They also constructed a nationalist discourse of sovereignty. In other words, they did not just set up the ECtHR and the national political and legal orders against each other, they also set the British public against a loosely defined Europe. They did this first through working on a peculiarly British identity based on values and history. The debates about the Hirst decision, and about the ECHR in general, are rife with historical references, foremost among them the Magna Carta. This, alongside with the reminder of the involvement of British politicians and lawyers in the creation of the Council of Europe and the coalition itself, allowed British politicians to present Britain as the source of the defence of fundamental rights and freedoms. The ECtHR is then presented as an impostor institution trying to impose foreign values and legal reasonings. This identity component of the opposition to the ECtHR can also be found in debates about the EU as Euroscepticism holds a strong identity component in general. 38

The omnipresence of penal populism

  • 39 See note
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  • 41 House of Commons Debates, February 10, 2011, c. 537.

31The identification of national sovereignty, with an exclusionary identity component, constructs the image of a European elite who is not aware of national particularisms and therefore ignores the national level of decision-making.39 Boris Johnson’s discourse, for instance, emphasised Britishness as opposed to European control, a feature which led to a “populist ‘othering’ of the EU”.40 MPs thus characterise one type of foreign elite pitted against national legitimacy. They can also oppose their constituents themselves, not just the national constitution, to the European elite. Peter Hollobone expressed this double nature of opposition to Europe in February 2011: “How has it come about that we, in a sovereign Parliament, have let these decisions be taken by a kangaroo court in Strasbourg, the judgments of which do not enjoy the respect of our constituents?” 41MPs regularly appeal to their constituents, in general to argue that most people will not want to extend the franchise to prisoners. They do so by opposing their constituents to elite judges.

  • 42 By September 2011, the backlog was 160,000 applications, see
  • 43 House of Commons Debates, October 27, 2011, c. 520.
  • 44 House of Commons Debates, October 27, 2011, c. 567.

32The attack on judges is not just a principled attack on the elite, it is also a condemnation of how the Court actually works. In 2012, when the UK held the Chairmanship of the Council of Europe, a position which would eventually lead to the Brighton Declaration, numerous MPs argued that the Convention system was just not efficient. Indeed, the ECtHR suffered from a very long backlog of cases,42 which MPs presented as a proof that the function creep of the Court was out of control, even for the institution itself. Furthermore, the MPs sometimes contested the very quality of the judges themselves, arguing that they were chosen among very poor candidates as put forward by the different member states. Those MPs who had observed the Council of Europe most closely and had participated in the selection themselves, although they did protest, agreed generally that they had been left with a very poor choice to make.43 This did not lead them to focus on how to appoint high-quality judges, but rather on either how to get rid of them or limit their actual powers. This is justified by arguing that people know better than judges what constitutes real human rights.44 Thus, the criticism shown by MPs against the Court is also a form of populism, where the position of the elites is shown not only as abusive, but also as undeserved.

  • 45 House of Commons Debates, February 10, 2011, c. 527.

33Penal populism’s definition of “the people” allows politicians to exclude criminals from the polity. Politicians’ discourse constructs two different categories, which can never overlap: law-abiding citizens and criminals. For instance, Conservative Robert Walter insisted that “the notion that those who knowingly place themselves outside the rule of law could have electoral sway equal to that of law-abiding citizens strikes me as illogical and unfair”.45 This argument is frequent and excludes those who have been sentenced to prison from the legitimate polity. It logically means that criminals should not be able to vote as they are depicted as excluded from “the people” who politicians claim to represent.

34The rhetoric of separation involves some very emotive language. David Cameron’s remark about being made “physically ill” by the very idea of giving prisoners the vote should be understood in this context. The phrase itself has become relatively famous in the context of the debate and is quoted numerous times in Parliamentary debates or press articles. The vocabulary of feeling and empathy is mobilized by MPs in Parliament, in particular to describe their own emotions when thinking about the case.

  • 46 House of Commons Debates, November 2, 2010, c. 772.
  • 47 House of Commons Debates, March 1, 2013, c. 619.

35The emotive language can be linked to more grounded arguments about the cost of the ECtHR’s decision. Every time a reform is proposed, one of the arguments used against it is that of the possible costs of compensation, which MPs present as ridiculously high. Labour MP Steve McCabe wondered about “the cost to the honest law-abiding taxpayer” of the damages possibly awarded to prisoners.46 The costs of legal aid are also linked to emotive language, with the claimants depicted in very strong terms, for instance by Conservative Charlie Elphicke: “The case of Hirst is entirely clear-cut. He is a man soaked in blood. He is remorseless and unapologetic, yet he uses taxpayers’ money to seek the right to vote. I am hard pressed to think of a more despicable and evil person in this country”.47

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36The emotive language of speakers in the debate are easy to explain when the press coverage of the question of prisoners’ right to vote is taken into account. The press had, indeed, escalated the issue from a question of a disagreement with an international body to that of a major crisis of identity and sovereignty.48 There had been press attacks against the ECtHR before, but the Hirst case press coverage was particularly inflammatory. It came at a time when the press was becoming particularly virulent against any form of European integration, and the conjunction of this growing Euroscepticism with increasing penal populism made any European decision on prisoners divisive.

  • 49 House of Commons Debates, November 2, 2010, c. 775-776, 779.
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37Parliamentary debate was influenced by the press coverage and it used vocabulary and arguments promoted by the press itself. This is not just true of Conservatives, who have traditionally taken ownership of the issues linked with law and order. Labour politicians also used the same rhetoric of penal populism and the same appeals to emotive language. They were following the populist coverage of events. For instance, during the November 2, 2010 Urgent Question debate, three different Labour MPs asked “whether the rapists, murderers and paedophiles” would get the right to vote.49 This list of three categories of criminals can be found regularly in the tabloid press.50 Only the Liberal Democrats have a more difficult position in this new setting, as we will see below.

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38As a point of comparison, the emotive language and appeal to penal populism are less visible in the House of Lords. By the first decade of the 21st century, the Lords had recast themselves as defenders of human rights against populism and as an unelected Chamber of second thought.51 This is the role they played here. Instead of insisting on a rhetoric of tough policing, they emphasized the rehabilitation role of prisons and the role that the right to vote might play in that mechanism. Despite the Lords’ opposition to the Commons on this issue, however, they are only marginally criticized or even mentioned in the Commons debates on the topic: when there is political momentum behind a debate, the House of Commons is able to bypass the House of Lords and ignore the disagreements with them.

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39The final decision was made by the government, and the direct legal effects of the parliamentary debates were marginal. No binding decision was made beside repeating the provisions of the ROPA 1983. The administrative changes were implemented by Whitehall, not Westminster, which might be taken to show that the results are evidence of a form of executive dominance, the fact that the executive is increasingly taking the upper hand in Western democracies.52 This tendency can be compared to the preferred organisation of political power for populist regimes.

  • 53

40Even if they might, before getting to power, promote a form of control of political decisions by the people, this changes once they take power.53 Populist leaders ask people to defer to the elected executive and trust them to make decisions in their best interests. They argue that what they do mirrors public opinion directly. Opinion polls appear prominently in justification while collective decision-making processes through institutions like Parliament are undermined.

41In the case under study, however, the debate appears to have first started not with the government, but in Parliament, and more specifically on the backbenches. Indeed, the Labour government, under which the Hirst decision was first given, and the Coalition and Conservative governments that followed, did not do much except delay any substantive decision-making process. The February 2011 debate started from the backbenches and aimed at criticising the Coalition’s European policy through a reaffirmation of sovereignty. We have seen earlier how direct, explicit attacks from Conservative backbenchers towards their own party’s government were frequent. Conversely, the government kept the debate at arm’s length by giving a free vote to its backbenchers and asking Cabinet members to abstain. After 2011, further discussions started either by government proposing changes and waiting to see how Parliament would react, or through direct questions from Parliament to the government. The changes proposed by the government (that is to say, the 2005 proposal to enfranchise any person sentenced to under four years) are unlikely to have been believed to be successful. Indeed, given the violent press coverage and the tenor of the 2011 debate, asking MPs to agree to such a measure seemed illusory at best. Therefore, it looks like Parliament had taken ownership of the issue.

42However, given the growing executive dominance of the British political system over the past few decades, it would be very surprising indeed if the only domain to escape the reach of government control were to be a highly divisive problem linked to questions of sovereignty, identity, and penal populism. Indeed, despite giving space for MPs to debate and take public position on the issue, the executive power actually retained control of any actual consequence. The committee reports, the consultations that were launched had no other practical effects than to delay decision-making to when the Council of Ministers of the Council of Europe made it absolutely necessary to do something. Parliamentary debates, despite their passion and histrionics, resulted in no action being taken, the votes merely reaffirming the status quo. The ultimate solution that was found, the Lidington compromise, was an administrative change of rules which involved a short debate in Parliament and no vote whatsoever.

  • 54

43What the government was allowed to do was to leverage Parliamentary opposition to get the Council of Europe to agree to a change of rules. Indeed, votes and debates in Parliament strengthened the hand of government at the negotiating table. The Chairmanship of the UK in 2012 was an opportunity which the government used to limit the power of the Court. The concept of margin of appreciation was expanded, although less than what a leaked draft had planned.54

  • 55

44This does not mean that Parliament had no influence over the government, as MPs have a variety of paths to exercising their influence outside of law-making or public debates.55 On the contrary, the more populist groups in Parliament were allowed, because of the government’s strategy which consisted in taking a step back, to politicize the debate to a very high point and centre European issues in it. Eurosceptics in Parliament were able to successfully link them with penal populism. By presenting Europe in mostly negative terms and making this institution responsible for a “soft” attitude towards criminals, they forced other MPs to make a choice between only two options. The first was to defend the decision by a European institution, but this required first stating that this did not involve supporting an unpopular minority. The second was co-opting a Eurosceptic discourse. Of course, this Eurosceptic discourse was limited, not a discourse of outright rejection of European institutions, but it meant that a form of soft Euroscepticism had to be expressed on both sides of the House and even, in the end, by frontbenchers.

  • 56

45Another institutional aspect of penal populism is the outright rejection of the role of counter-power that the judiciary can play. The post-Brexit decision by High Court judges, which got them labelled “Enemies of the People” by the Daily Mail was only the first page manifestation of a much larger movement which had been going on from some time, and not just in the press.56 In the Human Rights Act debates in 1998, for instance, MPs opposed to the bill were already putting forward the role of Parliament as the centre of all law, with a conception of judges as subordinate to them. This argument is found all through the debates on the right to vote for prisoners.

Intra-partisan divisions and dilemmas

  • 57

46The debate about the Hirst decision was dominated by Conservative politicians, especially backbenchers. For instance, even if the February 2011 motion was presented as cross-party, its promoters were actually all Conservatives, except former Labour Home Secretary Jack Straw. Attendance that day, as Hardman notes, was limited anyway.57 Only half of all MPs were present, as the debate was held on a day when, traditionally, MPs travel back to their constituencies, and, although almost three quarters of the Conservative MPs sat in the Chamber, only a third of Labour or Liberal Democratic MPs did, and later debates did not attract larger proportions of opposition MPs.

  • 58
  • 59 Thomas

47Therefore, it appears that, although it was presented as an expression of national unity, the central February 2011 debate was more of an inner discussion for the Conservative Party to deal with their own intra-party dissent. Although, by 2010, most Conservative MPs advocated some form of Euroscepticism, the division between “hard” (advocating for withdrawal from the EU) or “soft” (following Prime Minister David Cameron’s path to a more limited European Union) Euroscepticism was creating deep internal tensions.58 In this respect, at least, the internal divisions of the party on European matters found a moment of reprieve, illustrating how the discussion of penal policy appears at times of greater intra-party dissent.59 Indeed, Conservatives found themselves united in their rejection of the ECtHR’s decision, while they remained divided on European integration.

  • 60 House of Commons Debates, February 10, 2011, c. 539.

48The Labour Party, in government when the Hirst decision was delivered, remained distant from the debates. The participation of Labour Party MPs in the debate was much more limited than that of Conservatives MPs. However, they covered a wider variety of topics, from history and identity to international duty as a model, with no coherent party position. For instance, Jeremy Corbyn defended the right to vote for prisoners as a way towards rehabilitation.60 In 2011, he was a veteran Labour backbencher on the left of his political party, known for opposing some of his party leadership’s decisions. After he became leader of his party, in 2015, he never participated in a debate on the prisoners’ right to vote again. Thus, the question was never a major point of Labour Party policy: it remained a marginal issue in their discourse.

  • 61 House of Commons Debates, November 2, 2010, c. 777.

49In the few cases when European institutions were mentioned, Labour MPs participating in the debate mobilised the same Eurosceptic defence of national sovereignty as the Conservatives, despite the fact that the official party line was officially pro-EU, and generally pro-European institutions for most of the period of the debate, despite intra-party debates. Frank Dobson, a fairly Europhile Labour MP, stated in November 2010 “Whatever the priorities of the European Court, it is the British Government who decide what the priorities are for this House of Commons”.61 The rhetoric on Europe was therefore not different than that of the harder Eurosceptics in the Conservative Party. It was, however, one among a variety of issues and did not dominate Labour MPs’ discourse: the position towards Europe in this case was not a strong determiner.

  • 62

50The Liberal-Democrats, the last of the three major parties represented in the UK Parliament and part of the Coalition government between 2010 and 2015, was in a difficult position with the Hirst decision. The question of the right to vote for prisoners goes to the heart of party identity for the Liberal Democrats for two distinct reasons. First, the Liberal Democratic Party presents itself as rooted in the defence of civil liberties. In this context, the right to vote is central to the exercise of democratic rights as understood by the Liberal Democrats. Depriving prisoners of it then sounds disproportionate and the Hirst decision appears fair. Secondly, Liberal Democrats are the most consistently pro-Europe party in the UK. Although the implications and scope of this pro-Europe sentiment may vary (Goes identifies a variety of “shades of pro-Europeanism” in the party), they do tend to defend European institutions as a whole more consistently than the other major parties.62

  • 63 See for instance House of Commons Debates, November 2, 2010, c. 777 or House of Commons Deb (...)

51However, the Liberal Democrats, although technically in government through their participation in the Coalition, played no pivotal role in the debate: they took a backseat. Labour Party MPs used this opportunity to criticise this position and underline the absence of the Deputy Prime Minister.63

  • 64 House of Commons Debates, February 10, 2011, c. 543.

52In the February 2011 backbench motion debates, only five Liberal Democrats spoke. Over the corpus as a whole, only ten MPs took part. Those who did took a stand in favour of the right to vote for prisoners and the ability of the ECtHR to monitor human rights enforcement at a national level which ran contrary to what the majority of MPs were arguing for. Liberal Democrat Tom Brake highlighted this, but still quoted three other MPs that shared his views, two Labour MPs and one Alliance MP.64

53Before signing the coalition agreement, the Liberal Democrats had never advocated for a reassessment of the relationship with the Council of Europe and the ECtHR. The Coalition programme for government’s promise to establish a new Bill of Rights, thus shifting the balance of power with European institutions, was therefore a compromise on a very sensitive issue. In this context, the attitude of Liberal Democrats to keep their distance from the debate, less than a year after the beginning of the Coalition government, was a way to play down its internal divisions. Even after the height of the debate had passed and the question resurfaced only sporadically, Liberal-Democratic MPs still stayed away from it, rarely taking part in the Commons discussions. Of course, they had lost a large proportion of their MPs after their disastrous results in the 2015 general election, but even taking that into account, their absence from a debate on a human rights issue is conspicuous. The centrality of both Euroscepticism and penal populism in the debate can explain this attitude.

  • 65

54The framing of the debate made European institutions exclusively negative, as we have seen above. The Liberal Democratic position was therefore difficult to hold in front of voters. During the Coalition, the party’s position towards Europe was played down at the level of party leadership, and the MPs position on prisoners voting followed this trend.65 So Liberal Democrats could not play on the general frame of Europe in this parliamentary debate, because of this overwhelmingly negative connotation. Neither did they want to use the frame of penal populism, on which they never scored high for the electorate. Participating to a debate that linked so strongly two of their weaknesses was therefore not considered desirable. MPs decided to set aside one of the core components of their party values to avoid losing popularity which, in the end, was not enough to avoid their loss of voters.

Conclusion

55The position of British politicians on the question of the right to vote for prisoners can therefore be explained by a combination of factors at party level. The rise, on a national level, of Europe as a divisive, but electorally significant, issue, worried the Conservative leadership enough that they used the reaction to the Hirst case to offer a proxy for attacks on its European policy, which was not sufficient to avoid Brexit. The Labour Party chose to sidestep the European aspect of the debate and try and establish themselves as defenders of British identity and history, aligned with a form of national penal populism. Sitting in the middle, there was very little the Liberal Democrats could do while still sticking to the party values and history they chose to put forward.

56Rather than allowing Conservatives to manage their intra-party dissent, the debate allowed Eurosceptics to organise and attach still more negative frames to Europe. The conflation between the EU and the ECtHR played into the hand of Eurosceptics as well, as it made criticism of the EU more intense. Thus, backbench Parliamentarians led the debate, their rhetorical use of penal populism was ultimately influential in crafting a very limited response by the government.

  • 66

57In August 2023, the Conservative government was, once again, talking of leaving the system of the ECHR for a national Bill of Rights.66 The starting point of these proposals was, this time, the risk that the Council of Europe would block some stringent proposal on immigration policies. The debate, once more, hinged on control over questions of domestic policies linked to penal populism. It appears, therefore, all the more important to defend a strong international check on executive power to defend the rights of those most unpopular and weakest parts of the population who are threatened by populist policies.

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Annexe

Annex: List of debates included in the corpus

January 11, 2006: Electoral administration Bill

November 2, 2010: Urgent Question: Prisoners’ Right to Vote

November 3, 2010: Oral Answers

November 23, 2010: Oral questions Prisoners (Voting Rights)

January 11, 2011: Westminster Hall Prisoners (Voting Rights)

January 11, 2011: Oral questions Prisoners (Voting Arrangements)

February 10, 2011: Voting by Prisoners

October 27, 2011: HC Debate Council of Europe (UK Chairmanship)

October 24, 2012: Oral answers

November 22, 2012: Voting Eligibility (Prisoners)

March 1, 2013: Human Rights Act 1998 (Repeal and Substitution) Bill

April 16, 2013: Draft Voting Eligibility (Prisoners) Bill (Joint Committee)

December 5, 2014: Convicted Prisoners Voting Bill, Second Reading

November 2, 2017: Sentencing

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Notes

1

Des McNulty et al., "Human Rights and Prisoners' Rights: The British Press and the Shaping of Public Debate", The Howard Journal of Criminal Justice, vol. 53, n° 4, 2014, 360–376, <https://doi.org/10.1111/hojo.12075>; Michael Arnheim, "MPs DO Have Means of Breaking Stranglehold Human Rights Lawyers Have", Mail Online, September 13, 2023, <https://www.dailymail.co.uk/debate/article-12515285/DR-MICHAEL-ARNHEIM-MPs-legal-means-breaking-stranglehold-human-rights-lawyers-democracy-wont-use-it.html>.

2

Hirst v United Kingdom (N°2), ECHR, October 6, 2005.

3

Lieve Gies, "Human Rights, the British Press and the Deserving Claimant", in Katja S. Ziegler et al. (ed.), The UK and European Human Rights: A Strained Relationship?, Hart Publishing, 2015.

4

Ed Bates, "Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg", Human Rights Law Review, vol. 14, n° 3, 2014: 503–540, <https://doi.org/10.1093/hrlr/ngu024; Helen Hardman, "In the Name of Parliamentary Sovereignty: Conflict between the UK Government and the Courts over Judicial Deference in the Case of Prisoner Voting Rights", British Politics, vol. 15, n° 2, 2020, 226–250, <https://doi.org/10.1057/s41293-019-00110-x>.

5

Colin Murray, "A Perfect Storm: Parliament and Prisoner Disenfranchisement", Parliamentary Affairs, vol. 66, n° 3, 2013, 511–539.

6

Simon Usherwood and Nick Startin, "Euroscepticism as a Persistent Phenomenon", JCMS: Journal of Common Market Studies, vol. 51, n° 1, 2013, 1–16, <https://doi.org/10.1111/j.1468-5965.2012.02297.x>; Nathalie Brack and Nicholas Startin, "Introduction: Euroscepticism, from the Margins to the Mainstream", International Political Science Review, vol. 36, n° 3, 2015, 239–249, <https://doi.org/10.1177/0192512115577231>; Simon Usherwood, "The Third Era of British Euroscepticism: Brexit as a Paradigm Shift", The Political Quarterly, vol. 89, n° 4, 2018, 553–559, <https://doi.org/10.1111/1467-923X.12598>.

7

Agnès Alexandre-Collier, "Le Phénomène Eurosceptique au Royaume-Uni", Outre-Terre, vol. 4, n° 41, 2014, 100–112, <https://doi.org/10.3917/oute1.041.0100>.

8

Zoë Jay, "A Tale of Two Europes: How Conflating the European Court of Human Rights with the European Union Exacerbates Euroscepticism", The British Journal of Politics and International Relations, vol. 24, n° 4, 2021, <https://doi.org/10.1177/13691481211048501>.

9

Cas Mudde, "The Populist Zeitgeist", Government and Opposition, vol. 39, n° 4, 200, 541–563, <https://doi.org/10.1111/j.1477-7053.2004.00135.x>.

10

Erik Voeten, "Populism and Backlashes against International Courts", Perspectives on Politics, vol. 18, n° 2, 2020, 414, <https://doi.org/10.1017/S1537592719000975>.

11

Thomas Guiney, "Ideologies, Power and the Politics of Punishment: The Case of the British Conservative Party", The British Journal of Criminology, vol. 62, n° 5, 2022, 1160, <https://doi.org/10.1093/bjc/azac031>.

12

Colin Murray, "A Perfect Storm: Parliament and Prisoner Disenfranchisement", op. cit.

13

Sven-Oliver Proksch and Jonathan B. Slapin, "Institutional Foundations of Legislative Speech", American Journal of Political Science, vol. 56, n° 3, 2012, 520–537, <https://doi.org/10.1111/j.1540-5907.2011.00565.x>.

14

Anne Cousson, "Reinventing the House of Lords for the 21st Century", Revue LISA/LISA e-Journal, vol. 20, n° 54, October 2022, <https://doi.org/10.4000/lisa.14530>.

15

Colin Murray, "A Perfect Storm: Parliament and Prisoner Disenfranchisement", op. cit.

16

Brian Simpson, Human Rights and the End of the Empire: Britain and the Genesis of the European Convention, Oxford University Press, 2001.

17

Neil Johnston, Prisoners’ Voting Rights, Briefing Paper 07461, House of Commons Library, 2020.

18 House of Commons Debates, November 3, 2010, c. 921.

19 For instance, in 2000, the British government published a statement authorizing homosexual people to be openly part of the Armed Forces, without Parliamentary debate.

"Resolution ResDH(2002)35 Concerning the Judgments of the European Court of Human Rights of 27 September 1999 (Final on 27 December 1999) and of 25 July 2000 (Final on 25 October 2000) (Article 41) in the Case of Smith and Grady against the United Kingdom", <https://hudoc.echr.coe.int/eng?i=001-56394>, accessed October 9, 2023.

20

Daily Mail, "Archbishop Backs Axe Killer: Dr Rowan Williams Says Prisoners Should Get the Right to Vote after Campaigner John Hirst’s Boasts", Mail Online, February 8, 2011, <https://www.dailymail.co.uk/news/article-1355036/Prisoners-vote-Archbishop-Rowan-Williams-backs-axe-killer-John-Hirsts-boasts.html>.

21

Des McNulty et al., "Human Rights and Prisoners’ Rights", op. cit. ; Jonathan Aitken, "Prisoners Don’t Care about Their Right to Vote", The Telegraph, December 14, 2006, <https://www.telegraph.co.uk/news/uknews/1536945/Prisoners-dont-care-about-their-right-to-vote.html>.

22 Frodl v Austria, April 8, 2010; Greens and M.T. v the UK, November 23, 2010; Scoppola (N°3) v Italy, May 22, 2012.

23

Laurence R. Helfer and Harry R. Chadwick, “The Burdens and Benefits of Brighton", European Society of International Law | Société Européenne de Droit International, June 8, 2012, <https://esil-sedi.eu/the-burdens-and-benefits-of-brighton/>.

24

Neil Johnston, Prisoners’ Voting Rights, op. cit.

25 Council of Europe, Committee of Ministers 1302nd meeting, December 5-7, 2017.

26

Agnès Alexandre-Collier, "From Rebellion to Extinction: Where Have All the Tory Remainer MPs Gone?", The Political Quarterly, vol. 91, n° 1, 2020, 24–30, <https://doi.org/10.1111/1467-923X.12824>.

27 House of Commons Debates, February 10, 2011, c. 508.

28

Zoë Jay, "A Tale of Two Europes", op. cit.

29 House of Commons Debates, February 10, 2011, c. 563-564.

30 Ibid., c. 538.

31 House of Commons Debates, November 2, 2010, c. 744.

32

Philip Lynch and Richard Whitaker, ‘Where There Is Discord, Can They Bring Harmony? Managing Intra-Party Dissent on European Integration in the Conservative Party’, British Journal of Politics and International Relations, vol. 15, n° 3, 2013, 317–339, <https://doi.org/10.1111/j.1467-856X.2012.00526.x>.

33 House of Commons Debates, December 5, 2014, c. 612.

34

Ed Bates, "Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg", op. cit., 523.

35 House of Commons Debates, February 10, 2011, c. 575.

36 House of Commons Debates, November 2, 2017.

37 Ibid., c. 1013.

38

Oliver Daddow, "The UK Media and 'Europe': From Permissive Consensus to Destructive Dissent", International Affairs, vol. 88, n° 6, 2012, 1219–1236, <https://doi.org/10.1111/j.1468-2346.2012.01129.x>; Juan Díez Medrano, Framing Europe : Attitudes to European Integration in Germany, Spain, and the United Kingdom, Princeton Studies in Cultural Sociology, Princeton University Press, 2003, 210.

39 See note

29 above.

40

Charles Dick and Chris Gifford, "The Brexit Referendum: How Eurosceptic Populism Transformed UK Politics", in Karine Tournier-Sol and Marie Gayte (ed.) The Faces of Contemporary Populism in Western Europe and the US, Palgrave Macmillan, 2021, 41, <https://doi.org/10.1007/978-3-030-53889-7_2>.

41 House of Commons Debates, February 10, 2011, c. 537.

42 By September 2011, the backlog was 160,000 applications, see

Alice Donald, "The Remarkable Shrinking Backlog at the European Court of Human Rights", UK Human Rights Blog, October 1, 2014, <https://ukhumanrightsblog.com/2014/10/01/the-remarkable-shrinking-backlog-at-the-european-court-of-human-rights/>.

43 House of Commons Debates, October 27, 2011, c. 520.

44 House of Commons Debates, October 27, 2011, c. 567.

45 House of Commons Debates, February 10, 2011, c. 527.

46 House of Commons Debates, November 2, 2010, c. 772.

47 House of Commons Debates, March 1, 2013, c. 619.

48

Des McNulty et al., "Human Rights and Prisoners’ Rights", op. cit.

49 House of Commons Debates, November 2, 2010, c. 775-776, 779.

50

James Slack, "Rapists, Paedophiles and Burglars Get the Vote as Government Prepares to Lift Prisoners’ Election Ban", Mail Online, February 8, 2010, <https://www.dailymail.co.uk/news/article-1168562/Rapists-paedophiles-burglars-vote-Government-prepares-lift-prisoners-election-ban.html>.

51

Anne Cousson, "Reinventing the House of Lords for the 21st Century", op. cit.

52

Elena Griglio, "Parliamentary Oversight under the Covid-19 Emergency: Striving against Executive Dominance", The Theory and Practice of Legislation, vol. 8, n°1-2, 2020, 49-70, <https://doi.org/10.1080/20508840.2020.1789935>.

53

Jan-Werner Müller, What Is Populism?, Penguin, 2017.

54

"Draft Brighton Declaration on the Future of the European Court of Human Rights", The Guardian, February 28, 2012, <http://www.theguardian.com/law/interactive/2012/feb/28/echr-reform-uk-draft>.

55

Meg Russell and Daniel Gover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law, University Press, 2017.

56

Claire Phipps, "British Newspapers React to Judges’ Brexit Ruling: 'Enemies of the People'", The Guardian, November 4, 2016, <https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-british-newspapers-react-judges-brexit-ruling>.

57

Helen Hardman, "In the Name of Parliamentary Sovereignty", op. cit.

58

Philip Lynch and Richard Whitaker, "All Brexiteers Now? Brexit, the Conservatives and Party Change", British Politics, vol. 13, n° 1, 2018, 31–47, <https://doi.org/10.1057/s41293-017-0064-6>.

59 Thomas

Guiney, "Ideologies, Power and the Politics of Punishment", op. cit., 1170.

60 House of Commons Debates, February 10, 2011, c. 539.

61 House of Commons Debates, November 2, 2010, c. 777.

62

Eunice Goes, "The Liberal Democrats and the Coalition: Driven to the Edge of Europe", The Political Quarterly, vol. 86, n° 1, 2015, 93–100, <https://doi.org/10.1111/1467-923X.12145>.

63 See for instance House of Commons Debates, November 2, 2010, c. 777 or House of Commons Debates, February 10, 2011, c. 522.

64 House of Commons Debates, February 10, 2011, c. 543.

65

Eunice Goes, "The Liberal Democrats and the Coalition", op. cit.

66

Caroline Davies, "Rishi Sunak Told to Ditch Plans to Overhaul Human Rights Laws", The Guardian, January 25, 2023, <https://www.theguardian.com/law/2023/jan/25/rishi-sunak-told-to-ditch-plans-to-overhaul-human-rights-laws>.Haut de page

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Anne Cousson, « Euroscepticism and penal populism in the British Parliament: Parliamentary debates on the prisoners’ right to vote »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 25 novembre 2025, consulté le 16 décembre 2025. URL : http://journals.openedition.org/lisa/17656 ; DOI : https://doi.org/10.4000/157i1

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Anne Cousson



Dr Anne Cousson is a senior lecturer at the Université de Poitiers in Contemporary British Studies. She specialises in contemporary British politics, human rights and British political institutions. Her research focuses on institutional and constitutional issues of contemporary British political life, in particular the political discourse of fundamental rights and the UK’s relationship with Europe.

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