Tick tock tick tock

13 April 2011 by

The clock is ticking again on prisoner votes. The European Court of Human Rights has rejected the UK government’s latest appeal in the long-running saga.

The UK had attempted to appeal the recent decision in Greens and M.T. v. the United Kingdom. The full background can be found in my previous post, in which I predicted that the European court would find the UK’s appeal unappealing. It has, and the result is that the UK has just under six months to remove the blanket ban on prisoners voting.

Incidentally, Rosalind’s post from earlier today relates to a separate but also interesting Scottish court judgment on prisoner votes.

The outcome of the latest rejection is that around 2,500 cases which the Court has before it including around 1,500 which had been registered, can be “unfrozen”, that is reinstated,  if the UK fails to implement the decision in Hirst No 2. The Equality and Human Rights Commission told the court that there could be as many as 70,000 applications, which is the number of prisoners serving in the UK. The UK has until 11 October 2011 to implement the judgment.

If it does not implement the judgment, the UK would face thousands of financial claims against it potentially totalling millions of pounds. For the full background, see my previous post.

Ben Quinn of The Guardian has published an excellent summary which includes the comparative position on prisoner votes in other European states:

The UK is one of several European countries, including Armenia, Bulgaria, Estonia, Hungary and Romania, which automatically remove voting rights from sentenced prisoners, although remand prisoners still have the vote.

An auspicious club to be a member of. The BBC also has a well-timed and interesting article asking whether European courts are “going too far”, and includes interviews with court spokesmen and MPs.

The way in which this issue has played out is a neat illustration of why human rights decisions have been delegated by Parliament to the courts, both domestic and European. The prime minister has said that giving prisoners the vote would make him “physically ill”, and Parliament has voted against implementing the European court’s judgment by an enormous majority. Many have railed against “unelected” European judges telling us what to do.

The basic point is that no MP will stand up for prisoners because the people who vote them in don’t want them to. If prisoners had the vote, they would have more of a voice in protecting their basic rights. But no representation means nobody to represent their views. Which is why unelected and therefore unpressurised judges may be the best ones to make decisions in respect of their rights. Lord Neuberger has recently said that ignoring the Strasbourg may be legally justifiable, but just because the government can do something does not mean that it should. So the clock is ticking, and the next move is the government’s.

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  1. Katy says:

    Sorry just to clarify, my comment was directed at Mr Hirst.

  2. Katy says:

    I agree with your point about prisoners’ need to be represented, etc. However, “because the highest court in Europe has said so” is hardly a satisfying justification as to whether or not prisoners should be allowed to vote.

    The law is the law, and it must be obeyed, but that does not mean it is inherently right. Laws are motivated by so many other factors. For the purposes of a theoretical discussion (which is what is going on, since we know what the law on this is already and are not disputing that), on which there are many valid viewpoints, I find it difficult to accept your contention.

  3. John Hirst says:

    William Graham: Prisoners are a vulnerable group precisely because they do not have a voice in Parliament. Moreover, they are in need of protection from victimisation by wider society.

    Why exactly? Because the highest court in Europe has rule so.

  4. William Graham says:

    Mr Hirst, it is rather ironic calling prisoners vulnerable, when many are imprisoned to protect the public.

    Prisoners have the right to vote – before they choose to become prisoners. They can have it back when they’ve served their time.

    Having chosen of their own free will not to obey the law, why exactly should they get a say in making it for everyone else?

  5. Tim says:

    This appeal demonstrates how badly the UK is behaving and torpedoes any case for ‘bringing rights home’ – we can’t be trusted. This was an attempt to fumble the ball into somebody else’s court.

    What precisely did the UK hope for the ECtHR to do? Some States have complied; are they going to allow compliance to be optional? There would be no point to that.

    Lord Mackay of Clashfern gets it – what we are doing is dishonourable; we are not supposed to be devising sneaky ways to get around final judgements, we are supposed to be implementing them.

  6. Sean Fear says:

    “Mr. Fear, how democratic is it for prisoners to be unrepresented? How civilised is a democracy that ignores such human rights?

    As civilised as Armenia, Bulgaria, Estonia, Hungary and Romania?”

    Well, I certainly don’t consider such countries as uncivilised. Do you?

    As to the rest I consider it entirely reasonable that Parliament should determine that those who break the law sufficiently seriously to warrant a prison sentence should lose, temporarily, the right to participate in law-making.

    What, after all, do we bother to elect MPs for?

  7. Corrupted Mind says:

    @JohnHirst while I agree with you on a number of points – the idea that MP’s are more frightened by tabloid headlines rather than the electorate is a silly proposition. MP’s fully recognise that the tabloids shape opinon and reflect the public’s opinion but ultimately they will risk the ire of the editors if the public are with them. The truth is the public are not as liberal as we believe them to be (exhibit A: take the recent cabinet office website on repeals, the top suggestions were relating to section 20 (gays) or other discrimination legislation, death penalty, EU withdrawal, and fox hunting – I pity the poor person who had to moderate the website).

    I can’t help feeling that the appeal was a political device to stall until the Bill of Rights commission was set up. Now the coalition can introduce the required legislation and say to feisty backbenchers that this and other measures will be considered in the round by the commission so lets not get fines now while we are thinking about what should be done more broadly!

  8. NG2OX20 Will says:

    Mr. Fear, how democratic is it for prisoners to be unrepresented?

    How civilised is a democracy that ignores such human rights?

    As civilised as Armenia, Bulgaria, Estonia, Hungary and Romania?

  9. John Hirst says:

    Sean Fear: “The basic point is that no MP will stand up for prisoners because the people who vote them in don’t want them to”.

    I don’t accept that this is the basic point. Rather, it’s that MPs are scared of tabloid headlines and editorials and can be accused of knee-jerkism. Prison reform requires that MPs take a keen interest in what happens to this vulnerable group within society. Luckily, the ECtHR is there to protect individuals from abuse by the State and victimisation by wider society. Once all convicted prisoners get the vote, only then can the UK lay claim to being a liberal democracy.

    Obiter J: It is not difficult to see why the panel rejected the UK’s attempt to appeal against Hirst v UK (No2) by way of an appeal in Greens and MT v UK. The Convention clearly states that the decision of the Grand Chamber is final. There is no provision to appeal against an unappealable decision. The rules of the Committee of Ministers are also clear, there can be no rehearing of the arguments lost in the Court. The UK’s submissions seeking to appeal against Greens and MT v UK were simply arguments already lost in Hirst v UK (No2). Therefore, there was no serious issue of general importance.

  10. ObiterJ says:

    The Article 43 reference was rejected. Unfortunately, when the panel of 5 sit to decide whether to accept a referral they do not give reasons for refusal. Many will find it difficult to see why, in the absence of reasons, the panel did not find a serious issue of general importance. However, we are left to speculate and that is unsatisfactory.

    The UK government has raised the possibility of some kind of debate or review over human rights when it gets into the Chair at the Council of Europe. In my opinion, the other Member States would do well to stand against changes put forward by the present British government which is proving itself to be very illiberal in practice and, at times, even in their rhetoric.

    The government’s response to this will very probably be a de minimis one. Do the least to satisfy matters and the door will then be left open for further challenges. The bolder and ultimately more satisfactory course would be to simply allow all prisoners a vote with only limited exceptions which would be judicially determined – e.g. certain electoral offences; corruption in elected public office etc. Some exceptions are justifiable objectively because they strike at core principles of democratic government.

  11. Sean Fear says:

    “The basic point is that no MP will stand up for prisoners because the people who vote them in don’t want them to”

    Which, in essence, is what one would hope for in a liberal, democratic, state.

    1. public_lawyer1986 says:

      “Which, in essence, is what one would hope for in a liberal, democratic, state.”

      Shame they pick and choose when they’ll do this, though, eh?

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