Prisoners to vote in next general election, end of 5 year wait since Euro decision

on Wednesday a representative for the Coalition will tell the Court of Appeal that the law will be changed following legal advice that the taxpayer could have to pay tens of millions of pounds in compensation.

The decision, which brings to an end six years of government attempts to avoid the issue, opens the possibility that even those facing life sentences for very serious crimes could in future shape Britain’s elections.

Ministers are now examining ways that limits could be placed on which inmates can vote. They will push for strict conditions, including a ban on “lifers” and murderers from voting.

We have posted a number of times on this issue, most recently here.  In the 2005 decision of Hirst, the European Court held that Section 3 of the Representation of the People Act 1983, which prevents prisoners from voting, is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights. Under Article 46 of the European Convention of Human Rights, the UK is obligated to “abide by the final judgment” of the European Court of Human Rights.

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 Council of Europe, which monitors compliance with European Court of Human Rights judgments, has been sending increasingly hard-edged warnings that the UK must comply with the 5-year-old judgment in Hirst No. 2 or face sanctions. It has also recently acquired stronger powers to punish disobedient states. This, along with the threat of thousands of compensation claims by disenfranchised prisoners (by the end of September, the Strasbourg court had received 1,340 such applications), will have been at the forefront of Mr Cameron’s mind in making the decision, and perhaps explains the Telegraph’s report that he is “exasperated” and “furious”.

The Hirst saga is interesting not just for the principles behind the judgment, but also because it brings to the fore the sometimes strained relationship between European and UK human rights law.

On the one hand, the UK has to apply the judgments because it is signatory to the European Convention. It has, on the whole, had a good record of doing so, and it is still fairly unusual for the Strasbourg-based court to rule against a decision of the UK courts on sensitive issues. Usually the UK is given a fairly wide margin of appreciation to legislate. But sometimes the Strasbourg court will take a strong line, and the UK has to fall into step. On this issue, it is notable that the UK is the only country in Western Europe which allows none of its prisoners to vote.

On the other hand, some will argue that the Human Rights Act, which incorporated the European Convention on Human Rights directly into UK law, has given UK citizens sufficient access to a human rights remedy without having to appeal to Europe. And, after all, the UK courts will probably have a better understanding of sensitive domestic issues than Strasbourg. This begs the question as to why we still need a supranational human rights court at all. The Human Rights Act provides that UK courts must “take into account” Strasbourg decisions, but need not follow them. The Supreme Court is currently considering how this system should operate, and whether lower courts should be able to follow Strasbourg decisions directly, in relation to the retention of DNA evidence by the police. The point is that following the Human Rights Act, which is only a decade old, the relationship with the Strasbourg court is still in flux.

Ultimately the latter argument ignores the fact that we willingly signed up to the European Union, and whilst this is not a pure federal system along the lines of the United States, where the decisions of national institutions will always trump those of individual states, it is a system which relies on a foundation of common values and rights which cross borders. This includes the system of human rights law, which benefits from the occasional cross-pollenation of ideas across states. In any event, post-Human Rights Act, human rights law happens mostly within our domestic courts. The simple point is that short of withdrawing from the European Convention, which nobody is seriously advocating, there was little the UK could do to avoid implementing the Hirst judgment. The only surprise is that it has taken so long.

Update, 2 Nov 2010 – Listen to John Hirst (of the Hirst case and the Jailhouse Lawyer blog) and Lord Falconer debating the issue on Radio 4’s Today Programme, and read Afua Hirsch’s comment piece from guardian.co.uk here.

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