The Government has until 22 November to put forth legislative proposals in order to comply with the court’s rulings on prisoner votes.
I will not retrace the bizarre flip-flop which took place yesterday afternoon as the Attorney General appeared to say one thing about implementing the judgment (it’s complicated) and then the Prime Minister another (no way). Joshua Rozenberg has it right when he calls the situation “profoundly depressing”. For the full background, see my post on Scoppola No. 3, the last judgment on the issue.
I do have three thoughts on the current situation. First, it has become popular to say that there may be a way of solving the crisis which doesn’t require the UK to give any more prisoners the vote, which would be to tell the European Court of Human Rights that we already let remand prisoners and others who haven’t paid fines vote. The argument has been made variously by the BBC’s Nick Robinson, The Independent’s John Rentoul and even last night by a member of the Justice Select Committee, Nick de Bois MP – he told BBC Radio 4 (from 26:25) that “you could almost argue that there isn’t a blanket ban… for example someone on prison on remand or.. for not paying a fine doesn’t lose their right to vote” (I am interviewed immediately afterwards).
In short, unless I am missing something, this argument seems bound to fail. It was specifically addressed and roundly rejected in the original prisoner votes ruling of 2005, Hirst No. 2. The Government argued (see para 77) that the ban “affected only those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines.” This is what the Court said:
Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It 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. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.
The Court also addressed the issue at para 81:
It may also be said that the law in the United Kingdom is less far-reaching than in certain other States. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote
It is important to remember that in Hirst No. 2 the Court criticised the automatic and indiscriminate ban on convicted prisoners voting. That was the rationale, not that all prisoners were banned from voting.
So much for the remand argument. It is a little concerning that a member of the Justice Select Committee seems to have been hoodwinked by it.
Secondly, I wanted to revisit the question of how much non-compliance with the Court’s rulings is likely to cost the UK (see my post from last year). So far, the Court has declined to award any damages at all to prisoners who have brought claims on this issue. But that might well change if the UK fails to comply with the court’s rulings. The European Court of Human Rights regularly refused to award financial damages because ‘just satisfaction’ arises from a government changing the law to remedy the breach.
Paragraphs 94-98 of Greens and MT, a case brought by prisoners in 2010 complaining that Hirst No. 2 had not been implemented, are illuminating. The parties argued that in similar Italian cases the Court had awarded €1,500 in damages to applicants. The Court said no, but here is why:
98. While the Court accepts that the continuing prohibition on voting may give rise to some feelings of frustration in respect of those prisoners who can reasonably expect potentially to benefit from any change in the law, it nonetheless concludes that the finding of a violation, when viewed in tandem with the Court’s direction under Article 46 below (see paragraph 115), constitutes sufficient just satisfaction in the present cases.
Clearly, if the Government refuses to bring forward legislative proposals by 22 November, the position will change. At that point around 2,500 similar applications which are currently before the court will be unfrozen (see para 111 of Greens). But that would only be the beginning: the Court was told in Greens (para 75) that more than 100,000 prisoners were likely to have been affected by the breach. And that was in 2010 – the number now must be greater and will presumably continue to rise indefinitely.
I am no mathematician, but if 100,000 prisoners are awarded €1,500, that sounds like €150m (around £120m). And the number could continue to rise indefinitely as new prisoners would be entitled to damages too. Of course, giving some prisoners the vote will also cost money, but the bill for non-compliance clearly could be expensive.
Finally, a short point. There are six other states which maintain blanket bans on convicted prisoners voting: Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia. Of course, that says nothing in itself about the principle behind the ban. But given that none of the six other states in the blanket-ban club are standard bearers of liberal democracy (no disrespect intended), does that perhaps infer something about our own policy?
The problem with the prisoner vote issue is that it has been transformed into a debate about the legitimacy of the Court. That debate is important, but was dealt with constructively and with some success through the Brighton Declaration. The current ‘debate’ is unhelpful and seems more about those nasty ‘European’ judges than any real debate about the rights of prisoners. The sad thing is that had the Government (and the last one too) taken a less obstinate line, it could have implemented the Hirst ruling fairly painlessly; after all, the Court has recently reiterated that it will give states a wide discretion as to how many prisoners it will allow to vote. The Court’s outgoing British president made this point powerfully in yesterday’s Independent.
In January the Prime Minister told the Council of Europe that “It is of course correct that the Court should hold governments to account when they fail to protect human rights.” Unfortunately, that sentiment seems to have been swallowed up somewhere along the way and all which remains is this unhelpful mess.
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