An unappealing tactic on prisoner votes?

14 March 2011 by

I recently compared the prisoner votes issue to a ping-pong ball in a wind tunnel. The latest twist in the saga is that the UK government is seeking to overturn the European Court of Human Rights’ ruling in Hirst No. 2. This is certainly a daring tactic, given that the ruling by the Grand Chamber is not open to appeal.

To set out the very basic background (again), in the 2005 decision of Hirst (No. 2),the Grand Chamber of the European Court held the UK’s blanket ban on prisoners 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 ban was a “general, automatic and indiscriminate restriction on a vitally important Convention right“. Article 46 of the European Convention of Human Rights, which the UK signed up to, obliges it to “abide by the final judgment” of the European Court of Human Rights. So in theory, it should already complied with the judgment.

It hasn’t. Two successive governments have failed to implement the judgment. Prisoners are loved by few and since they cannot vote, politicians have very little reason to represent their interests. Some might argue that this proves the point made in Hirst No. 2. In any event,the European Court of Human Rights (in November 2010) warned the UK via the case of Greens and M.T. v. the United Kingdom that if it does not implement the judgment, it would face thousands of financial claims against it potentially totalling millions of pounds.

Safe to say, the court’s threats have not been well received in Westminster where the prisoner voting issue has been presented as a direct attack on the UK’s sovereignty by (possibly) unelected and unaccountable European judges. To that end, on 11 February 2011, MPs backed a non-binding motion opposing giving prisoners the vote by a 234 to 22, a majority of 212.

The government is now in a tricky position. On the one hand, it is aware that Parliament willingly signed up to the European Convention on Human Rights, including the agreement to abide by the Strasbourg-based court’s judgments. On the other, it seems highly unlikely that it would be able to secure enough support in Parliament to enact the changes.

Hence its latest move, to refer the Greens case to the Grand Chamber. This is well within its rights. What is interesting is the grounds of its appeal, which can be read here.

Put simply, Greens said little which was new; it merely reaffirmed what was said in Hirst No. 2 six years ago and acted as a vehicle to tell the UK to get on with implementing the judgment. Since Hirst No. 2 was a Grand Chamber judgment, it is unappealable.

Despite this, the UK has asked – perhaps without precedent – for the court to review its ruling in Hirst in any event. The justification is summarised by the Council of Europe here, but effectively amounts to a request that the court thinks again, given the Parliamentary debates which have occurred since (and even before) Hirst, as to whether it really considers a complete ban on prisoner voting to be outside of the UK’s margin of appreciation. As the UK put it, “the court “under-stated the breadth of the margin of appreciation which applies in the particular context of restrictions on the voting rights of convicted prisoners“. And,

The Government would wish the Grand Chamber to have the opportunity to re-visit that conclusion which, it is submitted, does not take sufficient account of the reasonable view that all offences which, in the judgement of the Courts, are serious enough to warrant imprisonment are also serious enough to warrant an exclusion from the franchise for the duration of imprisonment.

This is, to put it lightly, a bold tactic. The UK is asking the court to reopen a judgment which is effectively closed, and to rehear a case which has already reached the highest possible level of the court’s appeal process. It is hard to imagine the court accepting this, given the implications for other states who fail to comply with rulings and who could  see the any revision of Hirst No. 2 as a licence to ignore judgments. With 21 judgments against it in 2010, the UK is a good citizen in this regard, as compared to Russia (217) and Turkey (278). The stakes are high if even a “good” citizen refuses to implement a ruling.

So it appears that the prisoner voting issue has reached uncharted territory. Before it is resolved, the UK’s relationship with the Strasbourg court may have to be reexamined at a fundamental level. The government may simply be buying time before its human rights commission decides what to do (if anything) about that relationship. And the court will almost certainly find the UK’s daring tactics unappealing. But given the erratic nature of this ping-pong ball of an issue, it is increasingly hard to predict what will happen next.

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  1. Steve says:

    My comment is still there…

    John – whats a disability got to do with it, as far as I am aware I did not mention anything about disability.

    Tim – I was critical of your viewpoint, not you personally.

    I have read the judgment now and yes your right John, you can keep repeating the same old stuff, repreating everything the ECtHR held in their judgment but I do not agree with it. To say Tim is right and I am wrong really is naive. Nothing in law can ever be certain especially a court judgment so please, you may not agree with my opinion and it is fine if you don’t, but please, don’t say its wrong.

    1. John Hirst says:

      Steve: Your comment has gone where you accused Tim of “Sounds a little naive” has disappeared and all that remains is my knocking it down point by point. What disability has got to do with it is that you appear to enjoy trying to mock reasonable comments from the disabled with your own unreasonable comments.

      Tim’s viewpoint is sound whereas yours is unsound.

      Your opinion is wrong. The opinion of the Court is right. I am right to rely upon the Court judgment. You are wrong because your view is based on ignorance, prejudice and fear. Unfortunately, you are not alone in this country.

  2. Stephen says:

    I cannot accept that the vote is a privilege. If it is a privilege then only some will be granted it. I don’t see how that is consistent with universal suffrage. Who decides who should have this privilege? Why, none other than the elected legislature! So the elected legislature should choose its electorate, eh? Very dangerous territory, I suggest.

    As for the concept of the “social contract” if there is an implicit contract between citizen and state then I suggest the UK state has rescinded it. It frequently fails to honour its implied positive obligations to its citizens (eg, to ensure everyone has somewhere to live, has a sufficient income, etc).

    It is noteworthy that some 25% of the prison population is composed of citizens who have passed through the care system. This is a massive over representation. Ethnic minorities are also over represented. These are citizens for whom the state has failed; these people are not genetically pre-disposed to commit crime (a Nazi explanation). They are a product of a society in which the state has failed them. They require help not punishment.

    A state whose positive obligations to its citizens are fewer than the restrictions it places on the freedoms of its citizens is repressive. The UK, with its ever increasing authoritarian legislation and fewer economic opprtunities is repressive.

    Yes, let prisoners vote. And more power to the ECtHR.

  3. Tim says:

    I don’t understand the opposition to prisoner’s voting.

    It’s difficult for me to see what benefit withholding the vote from this group of people brings. It does not profit the victim, the prisoner or society in general. The only advantage, if that’s the word, might be to satisfy a sense of vengeance and vindictiveness – neither of which are good things.

    However, I can see potential harm in withholding the vote from this group of people. It is like saying to the prisoner: ‘You are no longer a person now that you are in prison; you are no longer entitled to a say in how society is run.’ That is a Victorian attitude, really, it is senseless. If you treat people like garbage, they will start to believe that they are garbage and once they believe they are garbage, they will act like garbage. Surely we want prisoners to be better people for when they come out?

    If you try to talk about what a benefit giving the vote to this group of people brings, I can see plenty. It’s rehabilitative, it fosters a sense of duty and responsibility, it is saying to the prisoner : ‘You’ve committed a crime and for that you will be punished by the loss of your liberty, but you are still a person and a member of society and you retain the right to have a say in how the country is run.’ This can only aid the rehabilitative and reformative process.

    I don’t know why we’re having this debate. It distracts from the fact that the designated authority, the ECtHR, has already ruled on the matter and we are breaking the law by failing to implement that ruling.

    1. John Hirst says:

      Tim: “I don’t understand the opposition to prisoner’s voting”. It doesn’t make sense to me either. It is a relic from a bygone age, partly it has its roots in a Victorian period and even goes further back than that.

      Some attitudes need to change.

      “Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting”.

      Reading that gave me a belly laugh.

      And Sophie Walker from Reprieve, on The Big Questions, opined that “My first thought was what a sheltered life Cameron leads!”.

      The biggest enemies to attitude change are ignorance, prejudice and fear.

    2. John Hirst says:

      Steve: “Sounds a little naive”. That’s a bit rich coming from you. Besides, Tim, like me, has a disability. However, I will let Tim defend himself unless it becomes too much for him then I will take up his side…

      “We are having this debate because public opinion is split and simply because the ECtHR has ruled on it, does not mean (i) the decision is right and (ii) people should not have a contrary view”. Duh!

      1. The UK before the Court argued that giving prisoners the vote would offend public opinion. Hirst v UK (No2) @ para “70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained
      following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of
      democratic society, for automatic disenfranchisement based purely on what might offend public opinion”. And @ para 4 of the concurring opinion of Judge Caflisch “the decisions taken by this Court are not made to please or indispose members of the public, but to uphold human rights principles”. The Court not only protects vulnerable groups from State abuse but also protects them from victimisation by wider society. Therefore, public opinion does not come into it.

      2. It is precisely because the highest court in Europe has decided the issue that it makes it right. There is no appeal from this.

      3. On this issue, people holding a contrary view are wrong. It stands to reason. I think a court of public opinion has its place, for example, in the McCann case and MPs fiddling their expenses.

      “Your post suggests that you believe the loss of liberty per-se is the punishment which requires no greater deprivation”.

      Hirst v UK (No2) @ para “75. Although rejecting the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty…”. So, Tim is right and you with your opinion to the contrary is wrong. It is immaterial that you cannot see it. There is a saying “there’s none so blind as those who don’t want to see”.

      How many people are concerned with voting outside? Should they also be disenfranchised? Your logic is flawed.

      “it may be a simplistic view…”.

      Who’s being naive now? The punishment is loss of liberty alone. Removal of the vote is an additional punishment which cannot be justified. It is not the conduct of the prisoners, but the conduct of the State. Regardless of the prisoners conduct before going to prison, they are still entitled to their human rights under the Convention.

      1. Tim says:

        Thanks, John, but it’s OK, I think Steve was criticising my viewpoint rather than me personally. Steve’s post seems to have disappeared from my screen for some reason, but I agree with your rebuttal points and also Stephen’s great post.

        1. John Hirst says:

          Tim: Yes, I noticed Steve’s comment has disappeared…

  4. Steve says:

    Thank you.

    The ECtHR confirmed there are limitations i.e ‘…the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process…’. Although I agree with this particular legal limitation, it is a fallacy for the ECtHR to seek and mitigate it as such, as indicated by the dissenting. How does the legitimate aim of ensuring the maturity of those voting differ to seeking the legitimate aim of disenfranchising prisoners, who have broken the legal, social and moral fabric of society?

    John – Of course, the blanket ban has been challenged but do you accept that, if the Government undertook a legitimate review and implemented limitations, deemed necessary in terms of restricting certain classes of prisoners, this would be satisfactory or do you call for ALL prisoners to have the opportunity to vote?

  5. ObiterJ says:

    “Murderer.” The European Court of Human Rights judgment in Hirst No. 2 states clearly –

    “On 11 February 1980, the applicant pleaded guilty to manslaughter on ground of diminished responsibility. His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment.”

  6. John Hirst says:

    Steve: I don’t appreciate the libel, I was convicted of manslaughter and that is a matter of public record.

    Your minimalist approach appears to suggest that unless people are being gassed or otherwise being exterminated then they are not entitled to claim human rights.

    Every day prisoners are being repressed and oppressed in our prisons. My attack is against the UK and not the rest of the Western World. The prison world is an authoritarian or totalitarian regime. One glance at s.47 of the Prison Act 1952 should tell you that. Within a so-called liberal democracy there exists, in effect, a police state. Prisons are not democratic places. If you bothered to read my case, Hirst v UK (No2), it is quite plain that the vote is not a privilege but a human right.

    Whether expanded or strengthened, for me they are the same thing.

    I don’t accept your argument that the ECtHR is challenging the State. One look at the case name, Hirst v UK (No2), shows that it is a case of the Individual v the State and not the ECtHR v the State. The Court merely rules in favour of one party or the other party, depending upon the strength of the argument advanced in the Court. I have read and heard silly arguments that the Court is challenging the sovereignty or Supremacy of Parliament. Bear in mind that the UK is in the dock and has been found guilty of breaching human rights.

    Perhaps, you should consider taking up another profession? It called the European Convention on Human Rights for a reason. Privileges are granted by the State and can be removed at whim. Sadly, the Lord of the Manor mentality and our being subjects still exists in 2011.

    1. Steve says:

      Please forgive me John, I was familiar with your claim in the Courts rather than your circumstances. A Lazy arror on my part for not referencing first. Sorry.

      I will say homicide offence then.

    2. Steve says:

      Well, simply because the ECtHR stated that to vote is a right, does not mean that is the correct decision. I was merely offering my opinion as to what the act of voting should be, in my opinion, which is a ‘privilege’.

      I did not say that I was practising European Human Rights, I am merely studying it at LLM level. I must concede that I have only read snapshots of the judgment from secondary sources. I will read the full judgment over the weekend.

      I suppose it all falls down on the fundamental question – is the incarceration/loss of liberty the punishment per-se or does the punishment involve the deprivation of everything else in addition to incarceration/loss of liberty.

      1. John Hirst says:

        Steve: Apology accepted.

        The Grand Chamber ruled that loss of liberty and not the loss of other rights, including the right to vote, is the punishment.

  7. John Hirst says:

    RJ “Prisoners do have the right to vote – when they’re not prisoners”. Duh!

    “Why should rights like this exist without any responsibility?”. It is precisely because those in power do not act responsibily that we need human rights to protect us from abuse by the State.

    “If a prisoner can’t be bothered obeying the criminal law, why should he or she have a say in making it?”. If MPs cannot obey the law and not fiddle their expenses why should they have a say in making laws?

    “Whatever happened to the notion of a social contract?”. I do not recall when I was born anybody shoving a piece of paper in front of me headed “Social Contract” and asking me to sign it. In any event, there are many in prison who claim that society breached the social contract first by abusing them.

    RJ, so you are in favour of torture, then?

    Steve: “The Convention was a protective framework for the most serious abuses”. The Convention is a beacon against authoritarian or totalitarian States creeping in. It lists the minimum standard of human rights throughout Europe. The UK has been found guilty of not even meeting the minimum acceptable level. Therefore, the UK being an abuser is not in a position to dictate that it is right to abuse such as prisoners who are in a vulnerable position because of their lowly social status.

    “50 years on and the Convention has been watered down so much as a result of the ECtHR jurisprudence that it no longer means the same as 50 years ago if, anything at all”. On the contrary, the ECtHR decisions strengthens and does not dilute the ECHR. The ECHR is a living instrument and moves forward with time. Where the ECHR has been watered down is within our own HRA when Articles 1 and 13 were not incorporated. Alex Bailin QC (Matrix Chambers) has argued, in relation to prisoners votes, that the HRA is tootless.

    In 50 years I have seen TV, mobile phones and the internet get invented and become common usages. Did anybody foresee these changes on the horizon? Leave history in the past and lets deal with the present and future.

    1. Steve says:

      I am sorry but I don’t agree save for you are right that the ECHR is a ‘…beacon against authoritarian or totalitarian States…’

      These two words ‘authoritarian’ and totalitarian’ are what the ECHR sought to prevent. This was, however, to prevent regimes in which citizens truly were oppressed and killed such as the Nazi campaign against the Jews and the genocide committed by the Serbs.

      Are you really comparing the UK government and most of the Western world to these regimes? Are you really saying that the UK government is an authoritarian regime because it would not allow you, as a convicted murderer to exercise a democratic [privilege] afforded to the rest of us?

      I am shortly about to complete a European Human Rights module within my LLM degree, yet I am still astonished at much of the jurisprudence of the ECtHR. Article 8 in particular.

      On the contrary, I think the ECtHR has widened the ECHR rather than strengthened it as you claim. However, even if I accepted for one moment that the ECHR was strengthened, it would depend to what extent one appreciates the role of the ECtHR.

      The ECHR is a living instrument, but that should not mean the Articles are constantly challenged and expanded upon to be used as a tool for challenging a State.

      People constantly remind me that as a Lawyer, I should fight to until the end of my life to protect what many term ‘rights’ although except for the non-derogable Articles, I like to call ‘privileges’. I am not a communist, but I think the biggest fallacy of this century is the notion that citizens have an absolute right to do and enforce every ‘choice’ they make.

      1. Tim says:

        John was convicted of manslaughter, not murder. The absence of mens rea means the difference ought to be acknowledged.

        Member States should not be allowed to decide what is a “real” human right. This should belong with the ECtHR. It is quite right that a third party should oversee Human Rights – the example of Nazi Germany has shown that Member States cannot be trusted to self-police.

        We set up the skeleton after the war. It is up to the ECtHR to put the meat on the bones of this skeleton and that is what they are doing.

        The UK is behaving like a bad loser in a game of football, trying to bully the referee and have the rules changed to suit them.

  8. Adam Wagner says:

    Steve – we will be posting soon on exactly this question. Keep posted!

  9. @Tim: “There’s not much point in having a European human rights set-up if Member States can pick and choose which laws they want to obey.”


    There’s not much point having a parliamentary democracy either if the wishes of elected MPs and the electorate are overturn by an unelected and unaccountable court

    1. Tim says:

      Sure there is, BoilingFrog they just don’t – and shouldn’t – oversee human rights.

      Hitler was elected – he committed colossal human rights abuses – that’s why Churchill suggested we set up the Convention. We suggested it, we wrote it, we signed up to it. We have no legal or moral right to disown our own baby at this late stage.

      There is a maxim in equity that ‘he who comes to equity must come with clean hands.’ We come to this with filthy hands, as we break the very law which we set up and signed.

      Might does not make right, democracy is argumentum ad populum in form.

      And the judges are elected.

      1. Steve says:

        As you rightly point out, the Convention was established in response to the ‘colossal human rights abuses’ committed by Hitler. The Convention was a protective framework for the most serious abuses.

        50 years on and the Convention has been watered down so much as a result of the ECtHR jurisprudence that it no longer means the same as 50 years ago if, anything at all.

        The Convention should be used only for the most serious human rights abuses you refer too. I wonder whether the Convention’s founders could ever have imagined in their wildest dreams that 50 years on, we would be where we are today.

  10. RJ says:

    Prisoners do have the right to vote – when they’re not prisoners. No-one forces them to commit crimes. When they’ve served their time they can regain it. Why should rights like this exist without any responsibility? If a prisoner can’t be bothered obeying the criminal law, why should he or she have a say in making it? Whatever happened to the notion of a social contract?

    But then this is the ECtHR we’re talking about, which won’t allow the UK to return an admitted terrorist to his home country, least he be subjected to ill-treatment. There was an old saying in my youth – you make the bed, you have to lie on it.

  11. John Hirst says:

    I would say that the UK is not going to come out too well by adopting this tactic. It amounts to a challenge to the Court, Council of Europe, Committee of Ministers and against the Convention. It is worth remembering that the Court felt threatened prior to the Interlaken Conference in February 2010. Representatives of the 47 Member States attended and all reaffirmed their commitments to abide by the Convention and Court decisions. Has the UK got such a short memory? The Interlaken Declaration emerged from the Conference, signed on behalf of the UK by Baroness Scotland. I think important things are the subsidiarity principle, and supervision of the execution of the Court’s judgments and sanctions to be applied against Member States which fail to honour their obligations.

    On 17/12/2010 the Committee of Ministers “noted that the United Kingdom authorities have confirmed that they will present draft legislation to implement the judgment in the near future as announced on 3 November by the Prime Minister to the United Kingdom Parliament”. Moreover, the CoM “called upon the United Kingdom authorities to present an Action plan for implementation of the judgment which includes a clear timetable for the adoption of the measures envisaged, without further delay”. Therefore, it has the appearance of arrogance to send a “Note from the Government of the United Kingdom to the Committee of Ministers”. I would hardly call what I have read in the “declaration of war” being construed as anything like “to update the Committee of Ministers” on what they were waiting to hear.

  12. John Hirst says:

    My first legal text book was Foulkes’ Administrative Law, 6th ed (1986). “The basic and traditional functions of the state are those of securing the community against external aggression and internal strife and of keeping itself going out of taxation…In addition, the need to secure human rights…”.

    There is the European Convention on Human Rights, but the courts only needed to take it into account. This position was not very helpful.

    “There is a need for public power and its efficient exercise: there is a need for protection against abuse of power”.

    Two chapters stand out for me ‘Powers and their use’ and ‘The misuse of power’.

    Before I started to study law, I read books on famous people like Alexander the Great, Oliver Cromwell, Gandhi, Mao, Churchill, etc. I didn’t know it at the time that I was getting a grounding for a long campaign and battle ahead.

    Somewhere along the way I read that every revolution in history has started in prison…

  13. John Hirst says:

    In 1989, whilst in Hull Prison Special Unit, I recall appreciating Jacko’s cartoons, one of which depicted the prison system playing ping pong with prisoners lives. It was also the year I started studying law and, ‘Bricks of Shame’, by Vivien Stern was republished. She wrote: “There are supposed to be’no votes in prisons’ and no political prizes for doing something about them. Any politician brave enough either to tell the truth about them or grasp the nettle and try to change the way they are run is likely, so it is believed, to run into difficulties with public opinion”. About the same time I read an article on prisoners rights’, ‘Going to Europe’, by Stephen Foster of Coventry University. The Human Rights Act 1998 should have saved me the trip to Strasbourg.

    Baroness Stern went on to argue: “Yet the evidence that exists does not support the view of a vindictive public thirsting for more and harsher punishment”. My experience is that its the right wing media and the 3 arms of the State which are opposed to prisoners votes.

    In the prison world, reputation is everything. It’s put up or shut up. That is, either back it up or back down. I decided to change one reputation for another. Leaving violence behind, I was urged on by Stephen Shaw who gave me a copy of ‘Prison Rules – A Working Guide’, and he said “They don’t understand the law”. Reforming myself was in spite of the system, confirmation enough that the system is in need of reform.

    It’s a battle of wills. My will to change things for the better and Parliament’s lack of will for reform.

  14. Tim says:

    There’s not much point in having a European human rights set-up if Member States can pick and choose which laws they want to obey.

    In my opinion the UK is ignoring both the lessons of history and the principles behind human rights.

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