A looming presence in the debate has been the much-touted figure of £160m compensation which the prime minister has warned Parliament that the UK will have to pay if it does not comply with a 6-year-old judgment of the European Court of Human Rights (see my last post on the issue for the full background). But where did this figure arise from? And is it right?
The very basic background to this issue is that in the 2005 decision of Hirst (No. 2), 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. The court ruled that the total ban on prisoners voting was a “general, automatic and indiscriminate restriction on a vitally important Convention right“.
Under Article 46 of the European Convention of Human Rights, which the UK bought into willingly, obliges it to “abide by the final judgment” of the European Court of Human Rights. So, politicians who want to fight ruling are feeling a kind of buyers remorse.
The UK government has consistently delayed implementing the judgment, and the coalition appears to be no different. Having realised that his proposals may not make it through a Parliament vote, the Prime Minister is now resiling from them. Like the last government, he has realised that prisoners have few friends in either the general public or indeed Parliament.
But what about the £160m? The figure arises from a large number of claims – around 2,500, of which 1,500 have been registered and are awaiting decision – which are now before the European Court of Human Rights. Using new powers, the Council of Europe, which monitors compliance with European Court of Human Rights judgments, has effectively frozen those claims pending the UK’s decision on the issue.
However, the Council of Europe has threatened that if the UK fails to implement Hirst No. 2, the claims will be reinstated.
So the first question is what “implementing” Hirst No. 2 entails. All the judgment really says is that a complete ban on prisoner voting is too indiscriminate. However, a series of recent cases, most notably Frodl v Austria, in which the court ruled that the vast majority of prisoners in Austria must be given the vote, unless there was a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“. This is far wider than Hirst (No. 2), and whilst it is not technically binding on the UK, it does provide a clue as to what would happen if either of the government’s recent proposals – limiting the vote to either 1 or 4 year serving prisoners – would be received in the European Court. Not well.
The second question is what would happen if the UK failed to implement the judgment to the court’s satisfaction. In short, the 2,500 or so claims would be unfrozen. But, crucially, the financial consequences for the UK may not be that great, as suggested by the recent case of Greens and M.T. v. the United Kingdom, in which the court ruled:
In future follow-up cases, in light of the above considerations, the Court would be likely to consider that legal costs were not reasonably and necessarily incurred and would not, therefore, be likely to award costs under Article 41. As a consequence of the Court’s approach to just satisfaction outlined above, an amendment to the electoral law to achieve compliance with the Court’s judgment in Hirst will also result in compliance with the judgment in the present cases and with any future judgment handed down in any of the comparable cases currently pending before the Court.
This means that the court declined in Greens to impose punitive damages on the UK for failing to allow prisoners to vote. Its declaration, and the repeated warnings by the Council of Europe, amounted to ‘just satisfaction’ (Strasbourg language for an effective remedy in human rights cases) without having to resort to damages. But the deciding factor was the government’s promises to change in the law.
The prisoners were awarded €5,000 in total, but this was for costs and expenses. The court said that it will not entertain costs applications in future case. So what this appears to mean is that the 2,500 or so cases in the pipeline would not receive costs, but may receive damages if the UK fails to implement Hirst (No. 2). To hit the £160m mark, all 2,500 applicants would need to receive £64,000 each. This is not going to happen. It is more likely they would receive a few thousand pounds each, if that, which could amount to around £5,000,000 to £10,000,000. It may cost more than this to implement the ruling in Hirst (No. 2).
But the situation is fluid. The Council of Europe is taking the issue seriously, and if the UK fails to comply it may seek to flex its muscles. And more claims may then follow, from the other 70,000 or so serving prisoners, which would cost the UK more. We shall see.
This is all fiendishly complex, and it is unsurprising that nobody, including the government, is quite sure what would happen once it has changed the law. Many, including legal blogger Carl Gardner, argue that the European court keeps moving the goalposts. That criticism has some force. But unless the current government swallows the bitter pill of prisoner voting reform now, it will simply delay the pain until later.
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