Today, the Scottish Government have introduced the “paving Bill” to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.
Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.
Update | The Voting Eligibility (Prisoners) Draft Bill has been released. It will not be put straight before Parliament for a vote; rather, it will be put to a Committee of both Houses for full Parliamentary scrutiny which could propose amendments, then back to the Government which will “reflect on its recommendations” and subsequently introduce a bill. There is no timetable set out for this process, but I imagine the Council of Europe may want a timetable imposed.
The bill sets out three options:
- A ban for prisoners sentenced to 4 years or more.
- A ban for prisoners sentenced to more than 6 months.
- A ban for all convicted prisoners – a restatement of the existing ban.
One interesting point on a quick read through is that option three “would re-enact the current general ban on prisoner voting, with some minor changes.” The language is indeed different to that used to enact the current ban, which is contained in section 3 of the Representation of the People Act 1983.
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.
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
No means no
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. Continue reading
The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.
The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:
- There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.
- The UK currently has 24 cases before the Committee of Ministers, which means that they have not been implemented.
- The UK paid out €454,457 [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.
The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law.
Under section 19 of the Human Rights Act 1998, a Minister of Crown in charge of a Bill must make a statement to Parliament on whether the Bill is compatible with European Convention on Human Rights. The Explanatory Notes to the new Bill reveal that no such statement of compatibility can be made in this case:
278… the Deputy Prime Minister has said that he is unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998. The Government wishes Parliament to proceed with the Bill notwithstanding that such a statement of compatibility cannot be made.
The reason that the Bill will not be compatible with the ECHR is that perennial headache for this (and indeed the last) Government, prisoner votes. As the explanatory notes explain:
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
CASE OF SCOPPOLA v. ITALY (No. 3)(Application no. 126/05) – Read judgment / press release / press release on UK implications
The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.
I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.
Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.
The Grand Chamber of the European Court of Human Rights is to deliver its latest, hotly anticipated, decision on prisoner votes next Tuesday 22 May. The case is Scoppola v. Italy (n° 3). The Court’s press release is here.
The UK intervened in the case, with the Attorney General Dominic Grieve QC himself travelling to Strasbourg to explain the UK’s views (including, classily, some submissions in French). As a result, the UK was granted an extension of time to comply with the decision in the original prisoner votes case, Hirst No. 2 and the more recent Greens and MT. The UK will therefore have 6 months from 22 May 2012 to introduce a Bill to Parliament (see this correspondence between the UK and the Court) to make the UK voting system compliant with the European Convention on Human Rights. Which is to say, it will have until 22 November 2012. Or is it 23 November?
In his speech earlier this week the Attorney General announced that he would appear in person before the Grand Chamber of the European Court of Human Rights in two weeks’ time, when it hears Scoppola v Italy No2, a case concerning prisoner voting. The United Kingdom is due to intervene in this case, for reasons that readers of this blog will be fully aware of.
I agree with Adam Wagner’s comments that the Attorney General’s speech should (if I may respectfully say so) be applauded for the mature and positive way it addressed some very important issues regarding the future protection of human rights at both the domestic and European level. Here I would like to focus in particular upon what Dominic Grieve said about prisoner voting, and his forthcoming appearance at Strasbourg. On page 9 of his speech he stated:
I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.
In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber This is another prisoner voting case.
The Ministry of Justice has just released its annual report to the Joint Committee on Human Rights, Responding to human rights judgments.
The report is worth reading. It contains useful summaries of the 17 European Court of Human Rights judgments against the UK in 2010 and the government’s response to them.
But what is really interesting is what it says about prisoner votes, and the government’s 6-year delay in implementing the 2005 decision in Hirst (No.2) v UK.
The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.
In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.
The clock is ticking again on prisoner votes. The European Court of Human Rights has rejected the UK government’s latest appeal in the long-running saga.
The UK had attempted to appeal the recent decision in Greens and M.T. v. the United Kingdom. The full background can be found in my previous post, in which I predicted that the European court would find the UK’s appeal unappealing. It has, and the result is that the UK has just under six months to remove the blanket ban on prisoners voting.
Incidentally, Rosalind’s post from earlier today relates to a separate but also interesting Scottish court judgment on prisoner votes.