Austrian prisoner vote decision now final, implications for UK

4 November 2010 by Adam Wagner

Updated | The dust has hardly settled on the government’s decision to allow prisoners to vote when, with uncanny timing, the European Court of Human Rights has denied the Austrian government permission to appeal in a similar case involving prisoners’ voting rights.

The Strasbourg court has notified Austria that its request for referral of the case of Frodl v Austria to the Grand Chamber has been rejected. This is likely to have a significant impact on the UK’s implementation of the prisoner voting system, as the court in Frodl effectively ruled that the disenfranchisement of prisoners could only happen on rare occasions: namely, where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. As I said in Monday’s post:

It is still open to the government to impose limits on what kind of prisoners can and cannot vote, but in light of the recent case of Frodl v Austria, the categories of prisoners whose vote can legitimately be taken away may be fairly limited. In that case the court said that any restriction on voting rights must be proportionate to the end pursued, and “must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.“

A prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“. In light of Frodl, it seems unlikely that the government will be able to restrict voting rights to those who have committed less serious offences.

The reaction to the government’s long-delayed decision on prisoner voting has been interesting to see. It has reignited (as if it ever went away) the interesting and important debate on the rightful place of Europe in setting our laws. The now-final decision in Frodl means that the government will find it hard to limit the rights of prisoners to vote in any significant way, and this will fuel the debate further.

Carl Gardner at the Head of Legal Blog has argued that the decision in Frodl is “breathtaking stuff” and that the court has gone “way beyond its supervisory role, and has got into detailed policy making“.

But, arguably, all the court is doing is following its own logic to its natural conclusion. If voting is a basic right and a cornerstone of democracy, as was the reasoning in Hirst, and prisoners fall within that basic protection, then only exceptional circumstances will justify taking that right away from them. Put another way, the right to vote cannot become a standard bolt-on for criminal punishment, as it is too fundamental to the operation of a democratic society. It should be remembered that prisoners are, by virtue of being in prison, already stripped of many of their most basic rights to privacy, family life, enjoyment of property, liberty and education. And until someone can identify how committing a serious crime is ‘directly linked’ (in the sense meant by the court in Frodl and Hirst) to the withdrawal of a person’s democratic rights, it is hard to see how the conclusion in Frodl could have been any different.

Thank you to John Hirst for the tip-off.

Update, 4 Nov 2010 – Sean Humber, of Leigh Day & Co Solicitors, is acting for more than 550 serving prisoners seeking a declaration from the European Court of Human Rights that the government’s failure to allow them to vote at the last general election entitles them to compensation. He has written an article on Guardian.co.uk. He says:

… the simple fact remains that whatever the government now does, serving prisoners, including our clients, were unlawfully prevented from voting at the recent general election. As a result, they are entitled to compensation for this breach of their human rights.

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