Europe sets deadline for UK to let prisoners vote, or else

23 November 2010 by Adam Wagner

Updated | Greens and M.T. v. the United Kingdom (application nos. 60041/08 & 60054/08) – Read judgment / press release (which the case summary below is based on)

The European Court of Human Rights is to give the UK a deadline of six months in order to allow prisoners to vote in elections, or it could face significant consequences.

The warning came by way of the judgment in a new case concerning the continued failure to amend the legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the United Kingdom. The court, following its own five-year-old decision in Hirst No . 2, found a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights but no violation of Article 13 (right to an effective remedy) of the Convention.

The applicants were two British nationals who were both serving a prison sentence at HM Prison Peterhead at the time their applications were lodged. On 23 June 2008 the applicants posted voter registration forms to the Electoral Registration Officer (“ERO”) for Grampian, using HM Prison Peterhead as their address.

They argued that, following the Hirst v. the United Kingdom (no. 2) judgment (among other things), the ERO was obliged to add their names to the electoral register. On 12 August 2008, the ERO refused the applicants’ registration applications on the basis of their status as convicted prisoners in detention. Their appeals were unsuccessful.

Section 3 of the Representation of the People Act 1983 imposes a blanket restriction on all convicted prisoners in detention irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. The legislation has not been amended since Hirst No. 2. As a result, the applicants were ineligible to vote in the United Kingdom General Election on 6 May 2010.

The blanket restriction introduced by section 3 of the 1983 Act was extended to elections to the European Parliament by section 8 of the European Parliamentary Elections Act 2002. The applicants were therefore also ineligible to vote in the elections to the European Parliament on 4 June 2009.

Decision – breach of rights, unsurprisingly

The Court found that “it was a cause for regret and concern” that, in the five years which had passed since the Hirst judgment, no amending measures had been brought forward by the Government.

However, the Court did not consider that aggravated or punitive damages were appropriate in the applicants’ cases.

The Court noted the recent decision of the Committee of Ministers, which made reference to the fact that the new UK Government was “actively considering the best way of implementing the judgment” in Hirst. While the Court accepted that the continuing prohibition on voting might be frustrating for prisoners who could reasonably expect potentially to benefit from a change in the law, it nonetheless concluded that the finding of a violation, taken together with the Court’s directions under Article 46, constituted sufficient just satisfaction in the applicants’ cases.

The Court held that the United Kingdom was to pay the applicants 5,000 euros (EUR) in respect of costs and expenses.

Comment – the clock is ticking

This is the latest development in a fascinating stand-off between the UK and the European Court of Human Rights over the state’s failure to implement the long-standing judgment in Hirst No. 2. Whilst it must be best for everyone concerned that the UK resolves the matter soon, the unfolding situation makes for interesting viewing as it bring into focus the delicate dynamic between the UK government and the European Court of Human Rights. The UK is legally bound to implement all judgments of the Strasbourg-based court, but the prisoner voting issue shows how much this agreement is still founded on the willingness of states to implement judgments, even the politically unpopular ones.

To that end, the judgment comes hot on the heels of last week’s warning from the Council of Europe that the UK must implement Hirst No. 2 and put in place better instruments for ensuring implementation of European Court of Human Rights judgments in general, or face unspecified consequences.

The case is also of interest from a technical point of view, as the court has in this instance chosen to use its new stronger powers, namely the ‘pilot judgment procedure‘, which is a means of dealing with large groups of identical cases that derive from the same underlying problem.  Whilst it did not consider it appropriate to specify the content of future legislative proposal, the lengthy delay to date had demonstrated the need for a timetable.

An important feature of the pilot judgment procedure is the possibility of adjourning or “freezing” the examination of all other related cases for a certain period of time. This is what has happened here: the Court had received approximately 2,500 similar applications, around 1,500 of which had been registered and were awaiting a decision. These have now been frozen, but will be reinstated if the UK fails to implement the decision in Hirst No 2. The Equality and Human Rights Commission told the court that there could be as many as 70,000 applications, which is the number of prisoners serving in the UK.

Should the UK fear the potential consequences of this judgment? The answer is maybe. The first thing to note is that the 6 month deadline imposed on the UK government to change the law only starts being counted when this judgment becomes final. From today, the UK has 3 months within which to lodge an appeal to the Grand Chamber of the European Court. It seems unlikely, given that the Grand Chamber has already examined this issue in Hirst No. 2, that it will choose to do so again. Therefore, the 6 month clock will probably begin ticking within weeks.

However, it should also be noted that the court declined in this case to impose punitive damages on the UK for failing to allow prisoners to vote. Its declaration, and the repeated warnings by the Council of Europe, amounted to ‘just satisfaction’ (Strasbourg language for an effective remedy in human rights cases) without having to resort to damages. As such, the £750 per prisoner damages estimate which has been suggested in the press may be inaccurate. The prisoners were awarded €5,000 in total, but this was for costs and expenses. The court has also said that it will not entertain costs applications in future cases, but presumably this does not apply to the 2,500 or so cases which have already been launched.

So, it would appear that if the UK fails to change the law within six months of this judgment becoming final, it will face the unfreezing of 2,500 similar claims, which are highly likely to succeed given that the legal principles are identical. It will then have to pay out the costs of those cases, which if similar would amount to around £6,000,000. This is of course a very rough estimate, and since at least 550 cases were launched in a group represented by the same lawyers, the economies of scale may mean the ultimate figure is less.

But compensation awards may not be the only consequence of continued non-compliance. The Council of Europe has at its disposal significant new powers to punish states which refuse to implement European Court of Human Rights judgments. It can initiate proceedings of non-compliance in the Grand Chamber of the Court, and these sanctions can, in theory, include suspension or expulsion from the Council of Europe.

Although the UK is by no means the worst offender when it comes to non-implementation of judgments – Russia, for example, is far worse – the court may still use this opportunity to flex its new muscles. So, despite being a relatively good citizen, the UK may be made an example of. The government has already conceded that at least some prisoners will be able to vote soon, so it seems unlikely that this stand-off will result in a genuine confrontation. But it may ultimately cost the UK some money.

Update, 23 November 2010 – The Guardian has reported on the case. The article suggests that the government could face compensation payments of “up to £160m” – it is not clear where this figure is taken from, given that the applicants here were awarded no compensation. If this refers to costs, then by my back of the envelope calculation, it could only happen if all 70,000 prisoners brought claims and were awarded €2,500 each. This is extremely unlikely, given that the court made clear in the most recent case that it would not entertain applications for costs in similar future cases.

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