Article 3 of the First Protocol to the European Convention on Human Rights was first brought to my attention in relation to Sark. It has been alleged that our 442 year old constitutional and legal order – still in many ways feudal – is not compatible with this Article, and that therefore we must reform. The UK Government has been exerting enormous pressure on us to adopt its particular favoured set of reforms. So what does this Article say?
Article 3 – Right to free elections
The High Contracting Parties undertake 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.
Since so much hoo-ha has been made for so long about what a (perfectly happy) community of 600 people is doing (and we may, incidentally note here, that a breach of this – or any other – Article by Sark has in fact not been proven in any court of law, while a breach of the same Article by the British Government’s treatment of disenfranchised British prisoners, has been proven years ago. Yet the British Government continues to drag its heels over its own need for reform while applying enormous pressure on Sark!), we can, presumably, safely assume that the British Government has no greater concerns over violations of this Article it is responsible for?
On the surface, Britain’s own legislature seems clearly compliant: members of Westminster Parliament are elected (at least, that is, members of the House of Commons), and elections are held on terms which seem to comply with this Article. But a closer inspection of the European Court of Human Rights’ jurisprudence seems to reveal a somewhat different story. For a start, what does the term “legislature” in Article 3 mean? Does it mean only the national parliament? This question was answered by the European Court of Human Rights ruling in the case of Matthews vs. the United Kingdom (Application no. 24833/94). The case involved a resident of Gibraltar who complained that her human rights were being violated because she was not allowed to participate in elections to the European Parliament; yet EU law applies in Gibraltar, so she was bound by the laws enacted by that parliament. The key question on which the case turned was: is the European Parliament a part of the legislature of Gibraltar? The British Government maintained that it was not, that the term “legislature” in Article 3 referred only to the national parliament, which in the applicant’s case was Gibraltar’s national parliament. Mathews, however, claimed, and the Court confirmed in its ruling, that it was.
A body forms a part of the legislature of a jurisdiction if it “is sufficiently involved in the specific legislative processes leading to the passage of legislation [of the jurisdiction] and is sufficiently involved in the general democratic supervision of the activities [of that jurisdiction]” (Judgement of the European Court of Human Rights, Strassbourg, in the case of Matthews vs. the United Kingdom (Application no. 24833/94), ¶54
The Court ruled that the European Parliament satisfied this test vis-a-vis Gibraltar and thus formed a part of Gibraltar’s legislature and thus the human rights of the applicant were being violated.
But of the three bodies involved in the legislative process of the European Union – the European Parliament, the Council of the European Union, and the European Commission – which one, we might ask, is the most “involved in the specific legislative processes leading to the passage of legislation of the European Union and is sufficiently involved in the general democratic supervision of the activities of the European Union”? Even a casual look at the four legislative procedures used to enact EU legislation (the codecision procedure, the assent procedure, the consultation procedure and the cooperation procedure) makes it utterly clear that in each case, the role, the powers, and the involvement of the Council of the European Union, and (though perhaps less obviously) of the European Commission, are greater than those of the European Parliament. Both the Council of the European Union and the European Commission are involved in specific legislative processes leading to the passage of EU legislation and are involved in the general democratic supervision of the EU to an extent at least equal to, indeed greater than, the European Parliament. If the European Parliament forms a part of the legislature of EU member states, then surely ipso facto so too do the Council of the European Union and the European Commission. Yet do the High Contracting parties hold 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 composition of those two bodies? If not, is it not the case that in fact every EU member state is violating the human rights guaranteed by Article 3 of the First Protocol to the European Convention of all of its residents, and that democracy in the European Union is, in fact, a farce?
A farce further aggravated by the recent signing of the Reform Treaty (the Lisbon Treaty) which is shifting more legislative powers from national parliaments (which are accountable to their electorates) to EU organs (which are not democratically accountable to anybody). Is not the signing of this treaty in fact itself a violation of the European Convention on Human Rights?
In the light of all this, one might legitimately ask, why are the British Government so concerned with harassing Sark?