King's Student Law Review

a.  Introduction

“No one should be under any doubt – prisoners are not getting the vote under this government.”.[i] There is little uncertainty concerning David Cameron’s stance on the controversial matter of prisoners’ voting rights. The debate is an ethical impasse, evoking strong responses from both sides of the argument. Consequently a wide range of justifiable approaches to the issue are advocated, both in the UK and across Europe. Nevertheless, since the judgement of Hirst v United Kingdom (No.2)[ii] in 2005 the Grand Chamber of the European Court of Human Rights (the Court) has taken a strong stance on this matter, ruling that a blanket disenfranchisement of those serving custodial sentences is a violation of the European Convention on Human Rights (the Convention). This is a ruling that the UK is legally obliged to comply with. Over 8 years on, however, from the judgement in Hirst, prisoners still do not have the right to vote. Successive governments have refused to comply. In this article I will critically analyse the ramifications of Hirst and highlight why the UK’s non-compliance is damaging not only to its own interests, but for human rights across Europe.

b. Analysis of Hirst

The Representation of the People Act 1983[iii] states that “a convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local election.”

 The Convention[iv] states that “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.”

 Evidently there is conflict between the domestic provisions and the Convention, conflict that has been challenged by John Hirst under the Human Rights Act[v].  As Article 3 Protocol 1 is not an absolute right, a state can impose limitations upon it. When assessing whether such a limitation is Convention-compatible the courts must question whether it is prescribed by law, whether it is pursuant of a legitimate aim and whether it is necessary in a democratic society. This particular case turned upon this last test; the proportionality requirement.

The Divisional Court[vi] ruled that there was no violation, stating that a blanket ban was proportionate. Kennedy LJ stated that prisoners had lost their moral authority to vote and moreover that the purpose of incarceration is to punish offenders by removing select rights, such as the right to vote. Furthermore he emphasised that a “broad spectrum of approaches”[vii] were taken amongst the democratic societies of Europe, with the UK falling squarely in the middle of this spectrum. Mr Hirst sought to appeal the decision but was refused.

He subsequently took the case to Strasbourg where the Court ruled that a violation had occurred by a vote of 12-5. The Court’s judgement was based upon two key arguments.

First was the argument of European consensus[viii]. Of the 43 Contracting Parties to the Convention at the time, 18 allowed prisoners to vote without restriction, 12 countries allowed prisoners to vote with some restrictions and 13 countries (including the UK) barred prisoners from voting completely. Put simply, the UK was part of a minority (13/43) that imposed a blanket ban upon prisoner voting, keeping company with countries such as Turkey and Russia who have particularly concerning human rights records. The Court tried to balance the competing views held by the various Contracting Parties and tried to apply a universal rule, ensuring the gradual progression of human rights standards throughout Europe.

Second, and in light of the European consensus, the Court argued that a blanket ban was disproportionate. They held that such a ban:

   “strips of their Convention right to vote a significant category of persons and it        does so in a way which is indiscriminate. The provision imposes a    blanket     restriction       on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of       their offence and their individual circumstances.”[ix]

This is an important point that is often missed. The Court did not hold that all prisoners should be allowed to vote or that a ban on prisoner voting was inherently a violation of the Convention. The Court said that although a legitimate aim is pursued by the measure, a blanket ban is excessive. Even those in prison for an extremely short length of time due to minor offences are barred from voting. This is disproportionate and therefore a breach of the Convention.

c. (In)Action of the UK Government

All Contracting Parties are bound to respect the rights entailed within the convention[x]. The decisions of the Court are binding[xi] and Contracting Parties must provide a remedy to any breach[xii]. The ultimate sanction for non-compliance with a judgement is expulsion from the Council of Europe[xiii]

In spite of the above provisions the UK government has refused to comply with the ruling. There are several reasons to explain this disinclination. The violation was not due to the ban being inherently incompatible, but rather disproportionate. It is a lot easier for a State to challenge the Court’s judgement than to challenge a provision of the Convention directly. Furthermore the decision was not unanimous; there were strong dissenting judgements from 5 of the 17 judges sitting on the case. Finally due to the UK’s unique constitutional composition and the importance Parliamentary Sovereignty plays, any UK government is wary of accepting European authority. This is especially true due to the Euro-sceptic mood prompted by a right wing government and the Euro-zone crisis.

5 years on from the judgement the Committee of Ministers  “expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election was held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place“[xiv]. Following this inaction the Court decided another prisoner voting case in 2010, Green & MT v UK[xv]. However in addition to confirming their decision in Hirst, the Court compelled the UK to “bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act” and to “enact the required legislation within any such period as may be determined by the Committee of Ministers[xvi]“. The Court also issued a veiled threat, stating that “there are currently approximately 2,500 applications in which a similar complaint is made, around 1,500 of which have been registered and are awaiting a decision.[xvii]“ If the decision of Green & MT v UK was not complied with, then the Court would have had the power to grant every one of these claimants a remedy (i.e. damages) under the Convention[xviii].

In light of this development the UK government contacted the Council of Europe acknowledging the deadline. They highlighted their intent to bring forward proposals however pointed out that both formal debates on this matter in Parliament had ended negatively, with a motion rejecting the Courts ruling passing with an emphatic 234 votes to 22. Based upon this the UK government requested the decision to be reconsidered.

This proposal was firmly rejected by the Council of Europe. On the day of the deadline imposed by the Court the UK government published a draft bill with three alternative proposals (including one to retain the status quo). This is currently being debated at the committee stage in Parliament. Bearing this in mind the Court has temporarily suspended any liability on behalf of the government until the result of the draft bill is clear[xix].

Be under no illusion though, as arguably this is a merely superficial act. Based upon the overwhelming opposition in Parliament this bill is unlikely to be passed if left to run its course. Furthermore senior government ministers have made it clear that the party whip will not be invoked to force the bill through Parliament. David Cameron has stated that the idea of complying with the decision makes him “physically sick” and Theresa May, the Home Secretary, seems to have a personal vendetta against any form of human rights instrument, threatening to withdraw from the Convention and repeal the Human Rights Act. Despite the strong words of the Court, it is highly unlikely that this government will respect the decision.
d. Ramifications of  Non-Compliance

As acknowledge in Greens & MT v UK, the UK’s non-compliance represents a threat to the future effectiveness of the Convention machinery. Domestic legal systems function well because there is an overarching entity to enforce the decisions made; the State. If someone is held guilty of murder they are put in prison. If someone is held liable for negligence, and refuse to pay damages, they will be imprisoned for contempt of court. Ultimately the legal decisions have real force because the State can enforce them. In the European sphere there is a difference.

The relationship between Contracting Parties and the Council of Europe is in no way comparable to the relationship between individuals and the State; the two parties are much more balanced. If a Contacting Party refuses to comply with a decision there is very little that the Council of Europe can actually do. The only real leverage that there is over a Contracting Party is the threat of expulsion from the Council of Europe. This is a drastic measure that has never actually been taken.

The Council of Europe comprises of 47 Contracting Parties. The only State not party is Belarus, which is effectively a dictatorship with scant regard to human rights. The political ramifications of expulsion for the UK would be huge. It would be hugely embarrassing and would show that the UK does not take human rights seriously, which amongst Western countries is almost unheard of. International relations would be seriously hindered and any negotiating power the UK has regarding international affairs would be severely undermined. Furthermore the Council of Europe and the EU have very close ties. All Member States of the EU are party to the Convention and the Council of Europe is commonly referred to as the ‘waiting room’ for membership to the EU. Several countries have been denied entry to the EU due to their poor human rights record. As expulsion is unprecedented it is unclear, but it is likely that such an act could severely damage ties with the EU and potentially even result in expulsion. The political and economic consequences of this would be far reaching.

There are stronger reasons, however, for the UK to comply with the ruling. As one of the key pillars of the Convention is European consensus, by applying this principle the Court forces countries with poor human rights records to follow the example of more progressive States. By complying with rulings of the Court these more progressive countries pave the way for others to raise their human rights standards. Furthermore, a universal respect for human rights and the decisions of the Court creates a sense of obligation amongst Contracting Parties. The threat of expulsions carries so much weight because it has never occurred before, nobody has dared refuse to comply. The political effects are unknown and no state is willing to take such a risk.

The UK is generally seen as one of these more progressive countries. If they refuse to comply with Hirst the principle of European consensus will be destroyed. Countries less friendly towards human rights will no longer feel an obligation to raise their standards, with catastrophic consequences for their citizens. In addition such an act will give them license to refuse to comply with decisions. If the UK refuses to comply with Hirst then why should any other state be bound by the Court? Why should Russia stop persecuting homosexuals? Why should Turkey respond to allegations of torture? Why should Hungary’s discriminatory constitution be reformed at all? The effects of non-compliance will be felt all over Europe, and they will not be positive. The most sophisticated system for the protection of human rights in the world is under threat, and for what? A largely symbolic and politicised rejection of European values.