Council of Europe warns UK again over prisoner voting rights
19 November 2010
The Council of Europe, which monitors compliance with European Court of Human Rights judgments, has warned the United Kingdom to stop dragging its feet over the implementation of judgments on politically sensitive issues.
In a draft resolution, the Committee on Legal Affairs and Human Rights, which was unanimously adopted on 17 November 2010, said:
The United Kingdom must put to an end the practice of delaying full implementation of Strasbourg Court judgments with respect to politically sensitive issues, such as prisoners’ voting rights.
The UK government has recently conceded the position on prisoner voting, although it appears not to have been able to put solid enough proposals to the Council of Europe to prevent this warning. The hold up may be because of another recent decision of the European Court of Human Rights in which it prevented Austria from unduly restricting prisoner enfranchisement. It is possible that the coalition are searching for ways of preventing those who have committed more serious crimes from voting, which was mooted when the policy shift was announced and confirmed by Ken Clarke in his recent evidence to the Joint Committee on Human Rights, but which on the face of it the Austrian decision prohibits.
The Council went on to stress that its own role in monitoring compliance would increase:
The Interlaken Declaration and Action Plan of February 2010 specified that priority should be given to full and expeditious compliance with the Court’s judgments. In line with the aims of the Interlaken process, the Assembly considers that it too should remain seized of this matter in order, in parallel, to ensure regular and rigorous parliamentary oversight of implementation issues – both at the European and national levels. The role of national parliaments can be crucial in this respect, as has been illustrated by parliamentary scrutiny mechanisms set up in the Netherlands and in the United Kingdom.
The CoE goes on to give detailed guidance to states as to how to monitor their own compliance with European judgments. Ominously, paragraph 10.3, which urges states “to take all measures necessary to resolve the outstanding implementation problems” tails off where a warning of consequences logically follows. In light of the new stronger powers obtained by the Council of Europe recently, states will have to take notice. But this is the latest in a long line of warnings, and the UK is by no means the most serious offender when it comes to non-implementation of judgments (Russia is far worse). So quick action is probably unlikely.
Thank you to John Hirst for the tip-off.
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Carl Gardner: It is not clear under Rule 9 whether or not I still have legal standing in Hirst v UK(No2). On the one scale there is the view that individual measures have been satisfied, and that all that remains is for general measures to be implemented. On the other scale there is the fact that I am still a prisoner serving a life sentence out in the community subject to a life licence, and should I be recalled to prison there is a danger I could lose my human right to the vote. However, what is clear from Rule 9 is that NGOs etc can still make written submissions on general measures to the Committee of Ministers and I do provide legal advice for some of them in this respect. I have advised that the Committee of Ministers is urged to invoke Rule 11 ‘infringement proceedings’ against the UK in relation to Hirst No2.
As you know, it is the majority opinion of the Court and not dissenting opinions which is binding. The latter may be interesting to academics, but that is about as far as they go.
The UK is out of line with most of Europe in this issue, and those other states which restrict the franchise to some extent I believe will also have to toe the in closer harmony line. Latvia which joined as an interested party in my case has since granted all prisoners the vote. At the Grand Chamber hearing of Hirst No2, I met many Austrian law students and their tutors. So, I am glad that Frodl v Austria came about for their sakes.
I do not accept that Frodl v Austria “moved on considerably from” Hirst No2. Rather, the Chamber took the opportunity in that case to explain to the UK what it had failed to grasp from my case. And, it appears that you still fail to understand Hirst No2.
In my case the Grand Chamber did refer to the blanket ban on prisoner voting. Importantly, the GC went further. Therefore, minimal compliance will not suffice to satisfy the Council of Europe, Committee of Ministers and Court. Ken Clarke is under an obligation to ensure that all citizens in the UK are guaranteed their human rights under the Convention. Within this obligation are those convicted of murder, manslaughter, rape and paedophilia, along with all the other convicted prisoners. They are human beings first, and the other labels are of secondary importance.
Whilst you are correct to point out that there is less delay since Frodl than in Hirst, nevertheless the requirement is for speedy full compliance with the Court’s judgments. There was ample time for the UK to fully comply with Frodl prior to the general election. Therefore, the UK has no legitimate legal excuse. Bear in mind that a court in Kenya ruled prisoners must have the vote and 3 days later they were all registered to vote on the electoral register!
Are you not feeling just a bit of that national disgrace which Baroness Butler-Sloss said has accrued for the failure to implement my judgment?
I think it’d be a bit odd if the Committee of Ministers decided to pick as its first referral under the new infraction procedure a case in which there was such powerful dissent in the Grand Chamber, in which the UK is not obviously out of line with other states in Europe and which the Court has further “interpreted” (i.e. moved on considerably from) only this year in Frodl v Austria.
If I were Ken Clarke, further expressions of impatience like this from Strasbourg would tempt me to minimally implement Hirst – i.e. merely to get rid of the “blanket ban” on all prisoners voting. Hirst says no more than that.
If what the Committee of Ministers wants is implementation of the Frodl gloss on Hirst, which goes much further, then I think such impatience is inappropriate – there has been very little delay since that judgment.