It is being reported that Parliament will, after all, get the opportunity to decide whether the blanket ban on convicted prisoners being able to vote will be lifted. MPs could get three options to choose from, including removing the ban for prisoners serving six months or less and those serving four years or less. A third option will be to maintain the status quo, with no convicted prisoners being able to vote.
The crucial question is: will this be enough to satisfy the Council of Europe, which monitors compliance with judgments of the European Court of Human Rights? The Government appears to think so. For my part, I am not so sure. To explain why, it is important to get a few of the facts right first.
First, the ‘ratio’ (that is, the central rationale) of the Hirst No. 2 judgment was that the indiscriminate and blanket ban on convicted prisoners being able to vote was contrary to Protocol 1 of Article 3 of the European Convention on Human Rights, which guarantees that states will “hold free elections”, although does not explicitly guarantee the right to vote. There are now seven European states which maintain such a blanket ban: Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the UK.
Incidentally, it is simply wrong to say that the Court should be satisfied because we allow some prisoners to vote – for example those detained on remand, for contempt of court or for non-payment of fines. This was specifically addressed and rejected in the original prisoner votes ruling of 2005, Hirst No. 2 (see para 81).
Secondly, article 46 of the European Convention on Human Rights provides that states must ‘abide by’ decisions of the Court. The UK committed to this when it signed up to the Convention. This means that it must comply with the central thrust of rulings. Clearly, in the UK system nobody can force Parliament to do anything. But it is highly questionable whether a vote involving no Government whip (and indeed, closely following a statement from the Prime Minister, quoted in the title to this post, strongly favouring the status quo), can be seen as a state ‘abiding by’ a judgment.
Thirdly, it is important to remember that Parliaments do not have a ‘democratic override’ of Court judgments. This has been proposed as a possible reform of the European Convention on Human Rights, but has been essentially rejected – for example by the Bill of Rights commission at an early stage in its deliberations – as unworkable. It isn’t hard to see why. Much of what the Court (and more broadly, human rights law) does is to protect unpopular groups from popular but oppressive state acts. If parliaments and not the Court had the final say on whether judgments of the courts would be implemented, they could plausibly vote against them all, thus rending the Court ineffective.
Fourthly, the Government is likely to take the somewhat legalistic approach following this vote that it has done exactly what the Council of Europe asked for, that is to “bring forward legislative proposals” within six months of the Scoppola decision (see my post). This instruction was most recently contained in the CoE’s press release following Scoppola:
The Court therefore held that the UK Government should bring forward legislative proposals to amend the law within six months of the date on which Greens and M.T. became final.
But the press release continued:
The Government was further required to enact the relevant legislation within any time-frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the implementation of the Court’s judgments.
Clearly, the mere fact that legislative proposals would be brought forward was not in and of itself, envisaged to be the end of the matter. As I have said, the CoE is there to make sure the UK complies with Hirst No. 2, that is by removing the indiscriminate ban on convicted prisoners voting.
The CoE’s thinking is made clearer in the Greens judgment – see paragraphs 113-115. The key paragraph is this:
Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals. Such legislative proposals will be examined in due course by the Committee of Ministers in the context of its supervision of the execution of the Hirst judgment. Further, it may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention.
The Court went on:
Accordingly, the Court concludes that the respondent State must introduce legislative proposals to amend section 3 of the 1983 Act and, if appropriate, section 8 of the 2002 Act, within six months of the date on which the present judgment becomes final, with a view to the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst according to any time-scale determined by the Committee of Minister
It is abundantly clear from this that the legislative proposals themselves are not the end point. Rather, in light of its feet dragging since the 2005 Hirst decision, the Court was giving the UK a deadline – six months, which ends on 22 November (this Thursday) – t0 to start the ball rolling. It will then look at the matter again and see whether the UK is in fact complying with Hirst. Plainly (plain to me anyway), only the removal of the ban on convicted prisoners voting will be enough to ‘abide by’ Hirst.
Of course, the Council of Europe could let the UK off the hook by agreeing that the Government has done its best and cannot force Parliament to do what it considers to be wrong. However, whilst that might politically be the easier solution in the short term, it is a path fraught with risk.
In backing down, the CoE would effectively be introducing a democratic override by the back door. It would be saying to other states that as long as a bill was put before a national Parliament – even if the Government itself opposed the bill (informally if not formally) – that would be enough to ‘abide by’ judgments of the court. The dangers of that approach are obvious.
Finally, this is not an easy issue. Most people (and most MPs) think that prisoners should not be given the vote. But the European Court of Human Rights has made clear in Scoppola that it will be for states to decide how to end indiscriminate bans on convicted prisoners voting. States are to be given a wide space within which to end the bans, which means the UK could in fact and in principle comply by only giving a very limited number of prisoners the vote. Had this and the last government attempted to make the case for limited reform from 2005 rather than placing itself in implacable opposition to any kind of change, it may have persuaded enough people to make a very limited change by now, and this impasse may have been avoided.
But here we are. Parliament is likely to maintain the status quo and then the CoE will decide what to do next. Points will be scored but nobody will be much the wiser on why an indiscriminate and blanket ban on prisoners may be a problem. What happens next is anyone’s guess.
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