Feature | Barred voters and the right to compensation under human rights law

9 May 2010 by Adam Wagner

With possibly thousands of people prevented from voting in the 2010 General Election, can those who were locked out claim for compensation for breach of their human rights, and how much are they likely to receive?

The legal basis: Article 1 of Protocol 3 to the European Convention on Human Rights, the duty on States to hold free and fair elections, has been receiving more than its usual share of attention. Under Section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a convention right. Under Section 7, a person may bring proceedings against a public authority which has acted unlawfully. One of the potential remedies is compensation.

How many: It appears that thousands of voters may have been prevented from voting as polling stations were unable to handle the amount of people who arrived in the last few hours before voting closed at 10pm. For example, The Guardian reports that “In Chester more than 600 people were unable to vote because the electoral list had not been updated and Labour won on a majority of 549“and in Hackney “The council estimated that 270 voters were turned away at four polling stations in the south of the borough.” In Sheffield Hallam “students tried to prevent ballot boxes being taken to the count after up to 500 voters were turned away”.

How much: We posted on Friday on an article by Lord Pannick, a human rights barrister, in which he said that prisoners denied the right to vote (a separate but certainly comparable issue to those who were turned away) may be entitled to awards “in the region of £750 and possibly more”. Geoffrey Robertson QC, also a well known human rights barrister, told the BBC that spurned voters may be entitled to “at least £750”.

However, it is not clear where either lawyer derived the £750 figure from. It may well be an estimation based on their experiences in the European Court of Human Rights. It is also possible that the latter read the former’s article on prisoner disenfranchisement. On examination of the case law, it is difficult to say how much, if anything, non-voters will be entitled to.

UK and European case law

The UK Courts have generally been reluctant to meddle in the UK electoral system, even in light of strong statements by the European Court on Human Rights on particular issues involving the electoral system. For example, in Chester, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2923, a prisoner claimed that his rights had been breached as prisoners in the UK are barred from voting in elections. Mr Justice Burton said “I remain of the opinion that the Court is ill-equipped… to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.”

By contrast, successful claims against States for failing to provide fair elections are fairly common in the European Court. However, that court does not usually provide specific compensation for the breach of human rights. This is because many of the cases involve defective electoral systems (for example, prisoners being unable to vote) rather than procedural errors, and as such the Court has generally considered that it is enough for the claimant that the State would now be obligated to change the system. For example, in Georgian Labour Party v Georgia, at para 155 the Court said:

The Court does not rule out that the applicant party, as a legal entity (see Russian Conservative Party of Entrepreneurs and Others, cited above, § 102, and Kommersant Moldovy v. Moldova, no. 41827/02, § 52, 9 January 2007), might have suffered some non-pecuniary damage on account of the disfranchisement of the Khulo and Kobuleti voters. However, the Court considers that the nature of the violation found, namely the arbitrary departure from the principle of universal suffrage, constitutes sufficient just satisfaction for the breach of the applicant party’s right to stand for election under Article 3 of Protocol No. 1

The best known case on disenfranchisement in the UK context remains Hirst v The United Kingdom (Application no. 74025/01, 6 October 2005 – see our comment). In that case, the applicant, a convicted prisoner who was denied the right to vote, claimed £5,000 for suffering and distress caused by the violation. However, the Court declined to make such an award as the claimant would be provided with “just satisfaction” for the breach of his rights once the UK Government implemented measures which allowed prisoners to vote. Ironically, Mr Hirst is still waiting for that just satisfaction as the UK have continued to bar prisoners from voting.

The most recent judgment on the issue was the case of Frodl v Austria (Application no. 20201/04, 8 April 2010 – see our post on that case). The Court observed that “while this might not be obvious from its wording, Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective democracy and is accordingly of prime importance in the Convention system”. However, since no claim for damage was made, the Court awarded no compensation (see para 38 of the judgment).

Will there be compensation and if so, how much?

The cases referred to above concerned the controversial issue of prisoner disenfranchisement, where the UK courts have been unwilling to meddle in an issue which Parliament has clearly chosen to leave unresolved.

On the face of it, the cases of people barred from voting due to simple administrative incompetence should be much more straightforward, as they do not require any major changes in the electoral system in order to be remedied. Jack Straw, the Justice Secretary, has already said that the problem “shows a lack of foresight and preparation”, so it seems unlikely that voters will be left without a remedy, and that may come in the form of compensation probably by way of an out of court settlement.

However, how much that will be is by no means clear, and it may be difficult to prove in practice that a person was prevented from voting as a direct result of administrative difficulties. For example, can it reasonably be said that it was the State’s fault that a person who arrived to vote at 9:55pm was unable to vote? What about people who spoke to relatives and friends at 9:30pm and were told it wasn’t worth trying as there were long queues?

Furthermore,  barred voters may argue that compensation alone is not enough and that they expect the ballots to be held again. Given that some of the affected seats were won by a narrow margin, this argument may have some force.

Read more:

• The Electoral Commission’s online complaint form
• BBC Q&A, including how a voter might make a legal challenge to election results (nb. this might cost £5,000)