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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