The right to vote for prisoners has become something of a human rights Rubicon for the United Kingdom, writes GCN prison law barrister Sarah Daley, in an analysis of today's ECHR judgment (12.8.14).

The right to vote for prisoners has become something of a human rights Rubicon for the UnitedKingdom .

Today the European Court of Human Rights (ECHR) declined to award damages to 10 prisoners who were detained in Scottish prisons at the time of the 2009 European elections whilst accepting that the continuing failure to remove the blanket ban on prisoner voting was a breach of Article 3 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

Almost 10 years ago...

On 6th October 2005 the Grand Chamber of the European Court of Human Rights (ECHR) gave its final judgment in the case of Hirst v The United Kingdom . It said that a blanket ban on prisoners voting was disproportionate:

"Article 3 of Protocol No. 1, which enshrined the individual’s capacity to influence the composition of the law -making power, did not therefore exclude that restrictions on electoral rights be imposed on an individual who had, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations. However, the severe measure of disenfranchisement was not to be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. As in other contexts, an independent court, applying an adversarial procedure, provided a strong safeguard against arbitrariness" [1]

The ECHR was concerned that sentences could range from one day to life and could be for relatively minor offences or offences of the utmost gravity. However all of those offenders received automatic disenfranchisement.

Successive UK governments have refused to comply with this ruling exposing what can be considered a serious enforcement deficit of the ECHR . As Dominic Grieve, the then Attorney General said in a speech in October 2012:

“But none of this makes Parliament subservient to the Strasbourg court. Observing its judgements is an international legal obligation arising by Treaty but it is possible for Parliament to take no action on the judgment, although that would leave the Government in breach of the Treaty and liable to criticism and sanctions from the Council of Europe by its fellow signatories and to damages awarded by the Court.” [2]

A backbench debate was held in the House of Commons on 10 February 2011; the motion, which supported the continuation of the current ban, was agreed on a division by 234 to 22.

In April 2011 Strasbourg gave the UK Government six months to introduce legislation which was subsequently extended by 6 months in light of the case of Scoppola v Italy (No 3) . The Government then had six months from 22nd May 2012 to introduce legislation.

On 22 November 2012, (and not a day earlier) the Government published a draft Bill, the Voting Eligibility (Prisoners) Draft Bill, for pre-legislative scrutiny by a joint Committee of both Houses. The cross party Committee published its report on 18 December 2013.

Meanwhile in June 2013 the Supreme Court heard argument in McGeoch and Chester [2013] UKSC 63.

So great was the Government’s opposition to the removing the blanket ban that Dominic Grieve, the then Attorney General, personally argued before the Supreme Court that the blanket ban was not a breach of prisoners' rights to free expression.

Although the Supreme Court rejected the prisoners’ claims, Baroness Hale did say that it was not for Parliamentarians to determine what the franchise should be because they have no relationship with the disenfranchised:

"[The Attorney General] recognises that it is the court’s task to protect the rights of citizens and others within the jurisdiction of the United Kingdom in the ways which Parliament has laid down for us in theHuman Rights Act 1998. But insofar as he implied that elected Parliamentarians are uniquely qualified to determine what the franchise should be, he cannot be right . If the current franchise unjustifiably excludes certain people from voting, it is the court’s duty to say so and to give them whatever remedy is appropriate. More fundamentally, Parliamentarians derive their authority and legitimacy from those who elected them, in other words from the current franchise, and it is to those electors that they are accountable. They have no such relationship with the disenfranchised. Indeed, in some situations, they may have a vested interest in keeping the franchise as it is" [3].

David Cameron has been quite clear that the idea of giving prisoners the vote makes him ‘physically ill [4] ’ and he has said in the past “No-one should be in any doubt: prisoners are not getting the vote under this Government.” [5]

On 18 December 2013 the cross party committee made the recommendation that prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections. However no bill was brought forward in the 2014 Queen’s speech.

Today's judgment

In light of this lack of progress, the claim brought by 10 prisoners detained in Scottish prisons was that their human rights had been breached after they were prevented from voting in the 2009 European elections.

Of course, since December 2013 there have been further political developments with the recent European election results and the rise of nationalistic, Eurosceptic political parties.

Today’s decision does not undermine in any way the Grand Chamber decision of 2004. The court endorsed its previous jurisprudence on the issue of  Hirst (no.2)  and  Greens and M.T  and said, very briefly, that for the same reasons that there was a violation in this case.

The troubling decision is the decision to refuse to award damages. Some may see this as a delicate, political decision given the recent rise of Euroscepticism and a likely reticence of the court to take an iron fist approach to enforcement.

It is true that it is likely in most circumstances that a finding of a violation amounts to just satisfaction in a voting case as the court stated:

"In the vast majority of these cases, the Court expressly declined to make any award of damages. As in those cases, in the present case the Court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants". [6]

What is troubling however is the effect on enforcement. The threat of damages was clearly in Dominic Grieve’s mind in October 2012 when he mentioned the consequences of not following the ECtHRs decisions. The electorate also may well have considered the damages bill more unpalatable than allowing short-term prisoners to vote .

It has taken the UK ten years to obtain a committee recommendation which would comply with theECHR’s judgment . Given the political posturing on this issue and the rhetoric that it inspires, this latest judgment leaves the UK with no motivation or reason to cross what they perceive to be their human rights Rubicon.

The dissenting opinion of Judge Wojtyczek contains a vision of a European future, which it is hoped will not prevail:

"In disputes concerning the scope of Convention rights there should be a – rebuttable – presumption that questions on which two or more reasonable persons strongly disagree should be decided by democratic national legislatures rather than by courts, let alone international courts, unless there are serious reasons for a particularly thorough judicial review of the disputed measures". [7]

The European Court of Human Rights should remain a respected and effective arbiter in the effort to maintain the international rule of law .

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Sarah Daley is a member of the prison law team at Garden Court North Chambers.

[1] Hirst v United Kingdom (no. 2) App 74025/01 para. 71

[2] Attorney General’s speech to BPP Law School 25th October 2012 https://www.gov.uk/government/speeches/parliament-and-the-judiciary

[3] McGeoch and Chester ibid para 89

[4] Prime Minister’s Questions, 3 rd November 2010

[5] Prime Minister’s Questions 24 th October 2012

[6] Firth v United Kingdom para 18

[7] ibid. Dissenting opinion of Judge Wojtyczek para. 7

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