More shenanigans on prisoner votes

25 October 2012 by

No means no

The Government has until 22 November to put forth legislative proposals in order to comply with the court’s rulings on prisoner votes.

I will not retrace the bizarre flip-flop which took place yesterday afternoon as the Attorney General appeared to say one thing about implementing the judgment (it’s complicated) and then the Prime Minister another (no way). Joshua Rozenberg has it right when he calls the situation “profoundly depressing”. For the full background, see my post on Scoppola No. 3, the last judgment on the issue.

I do have three thoughts on the current situation. First, it has become popular to say that there may be a way of solving the crisis which doesn’t require the UK to give any more prisoners the vote, which would be to tell the European Court of Human Rights that we already let remand prisoners and others who haven’t paid fines vote. The argument has been made variously by the BBC’s Nick Robinson, The Independent’s John Rentoul and even last night by a member of the Justice Select Committee, Nick de Bois MP – he told BBC Radio 4 (from 26:25) that “you could almost argue that there isn’t a blanket ban… for example someone on prison on remand or.. for not paying a fine doesn’t lose their right to vote” (I am interviewed immediately afterwards).

In short, unless I am missing something, this argument seems bound to fail. It was specifically addressed and roundly rejected in the original prisoner votes ruling of 2005, Hirst No. 2.  The Government argued (see para 77) that the ban “affected only those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines.” This is what the Court said:

Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.

The Court also addressed the issue at para 81:

It may also be said that the law in the United Kingdom is less far-reaching than in certain other States. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote

It is important to remember that in Hirst No. 2 the Court criticised the automatic and indiscriminate ban on convicted prisoners voting. That was the rationale, not that all prisoners were banned from voting.

So much for the remand argument. It is a little concerning that a member of the Justice Select Committee seems to have been hoodwinked by it.

Secondly, I wanted to revisit the question of how much non-compliance with the Court’s rulings is likely to cost the UK (see my post from last year). So far, the Court has declined to award any damages at all to prisoners who have brought claims on this issue. But that might well change if the UK fails to comply with the court’s rulings. The European Court of Human Rights regularly refused to award financial damages because ‘just satisfaction’ arises from a government changing the law to remedy the breach.

Paragraphs 94-98 of Greens and MT, a case brought by prisoners in 2010 complaining that Hirst No. 2 had not been implemented, are illuminating. The parties argued that in similar Italian cases the Court had awarded €1,500 in damages to applicants. The Court said no, but here is why:

98. While the Court accepts that the continuing prohibition on voting may give rise to some feelings of frustration in respect of those prisoners who can reasonably expect potentially to benefit from any change in the law, it nonetheless concludes that the finding of a violation, when viewed in tandem with the Court’s direction under Article 46 below (see paragraph 115), constitutes sufficient just satisfaction in the present cases.

Clearly, if the Government refuses to bring forward legislative proposals by 22 November, the position will change. At that point around 2,500 similar applications which are currently before the court will be unfrozen (see para 111 of Greens). But that would only be the beginning: the Court was told in Greens (para 75) that more than 100,000 prisoners were likely to have been affected by the breach.  And that was in 2010 – the number now must be greater and will presumably continue to rise indefinitely.

I am no mathematician, but if 100,000 prisoners are awarded €1,500, that sounds like €150m (around £120m). And the number could continue to rise indefinitely as new prisoners would be entitled to damages too. Of course, giving some prisoners the vote will also cost money, but the bill for non-compliance clearly could be expensive.

Finally, a short point. There are six other states which maintain blanket bans on convicted prisoners voting: Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia. Of course, that says nothing in itself about the principle behind the ban. But given that none of the six other states in the blanket-ban club are standard bearers of liberal democracy (no disrespect intended), does that perhaps infer something about our own policy?

The problem with the prisoner vote issue is that it has been transformed into a debate about the legitimacy of the Court. That debate is important, but was dealt with constructively and with some success through the Brighton Declaration. The current ‘debate’ is unhelpful and seems more about those nasty ‘European’ judges than any real debate about the rights of prisoners. The sad thing is that had the Government (and the last one too) taken a less obstinate line, it could have implemented the Hirst ruling fairly painlessly; after all, the Court has recently reiterated that it will give states a wide discretion as to how many prisoners it will allow to vote. The Court’s outgoing British president made this point powerfully in yesterday’s Independent.

In January the Prime Minister told the Council of Europe that “It is of course correct that the Court should hold governments to account when they fail to protect human rights.” Unfortunately, that sentiment seems to have been swallowed up somewhere along the way and all which remains is this unhelpful mess.

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  1. Geoffrey says:

    We ignored International Law in Iraq. What is so different?

  2. James Lawson says:

    The debate on whether or not a blanket ban on prisoner voting should continue is now sterile and irrelevant. The question has been judicially determined and is final.

    The issue now is whether the United Kingdom government will or will not comply with with its obligations in international law. Human Rights are concerned with the protection of the weak against the strong, the protection of unpopular minorities against the wishes and opinions of the majority. ‘Ownership’ of Human Rights is claimed by the Government who have ‘politicised’ them. The unfortunate effect of such a claim is that the form and content of such rights is to be determined by those against whom enforcement operates. Whatever normative statement or claim is made by the government, is made in its capacity of an offender and is no more worthy of consideration than that of any other group of offenders who have been found guilty by a court of competent jurisdiction, who then complain about the system that condemned them and now refuse to be bound. What claim does the government have to be taken seriously by those they govern than an identical claim make by a delinquent on the steps of the court that has just dealt with him?

    Although there are concerns about our loss of reputation abroad. I am just as concerned about the loss of government reputation and moral authority at home. What moral claim does the government make for adherence to the rule of law? What moral claim does it make for obedience to authority at any level beyond its ability to apply coercive force to ensure compliance?

    Any claim made by the government in the future about law and order is, as far as I am concerned not about whether it is morally wrong or right that such a measure should be imposed, since any moral claim was abrogated on the day it took a conscious political decision to pick and choose which law it was to be bound by. Rather, any future debate is reduced to little more than the extent to which compliance may be coerced from the public!

  3. The problem, Dr Sims, with simply saying that in your opinion prisoners should not allowed to vote, is that the European Court of Human Rights has now determined that the blanket ban is a violation of the Convention. When the United Kingdom signed up to the Treaty in 1950, it became bound as a matter of international law to “to abide by the final judgment of the Court in any case to which [it was a party]” (Article 46 of the Convention).

    Parliament is sovereign, yes, but the United Kingdom has bound itself under international law to abide by judgments of the European Court of Human Rights. If the United Kingdom refuses to abide by its international legal obligations simply because it doesn’t want to, then:

    1. The United Kingdom is ignoring the rule of law (i.e. that all of us, individuals and governments, are bound by the law), in which case, why should any other country ever listen to us when we tell them they should abide by the rule of law;

    2. The United Kingdom is saying that it will only abide by court judgments it wants to. If so, why should anyone in society abide by court judgments if they don’t want to?

    3. The United Kingdom is saying that it will only abide by international law when it wants to, in which case (a) what is the point of signing treaties at all if you don’t consider yourself bound by them, and (b) why should any other country or organisation ever enter into a treaty with the UK when there is now a precedent for the UK ignoring its obligations under international treaties.

    No society can function effectively without the rule of law, and the rule of law means, amongst other things that (a) we are all subject to the law, including governments, and (b) we must abide by court rulings even if we disagree with them. Like anyone who has even the vaguest respect for the rule of law, I am appalled by comments of the Prime Minister and the arrogance of our Parliament in deciding to ignore its legal obligations.

    There is one honourable solution, however. If the UK does not want to abide by the court judgment and – by logical extension – does not consider itself bound by Article 46, then it should say loudly and publicly that it does not consider itself bound by the Treaty and will therefore leave the Council of Europe. Then we could join Belarus as the only country in Europe not a member. How high we could hold our heads then.

    1. cidermaker says:

      On the other hand Richard, should one obey a ‘bad’ law? Should one not make every effort to change it, up to & including disobedience?

      1. I think that’s a fair comment to make, cidermaker. The only way to change the law here would be to amend the European Convention on Human Rights which is possible if the UK could persuade all 46 other member states to go along with it. That is near impossible, I suspect.

        If you take the position, “You must obey the law and if you disobey it because you think it is ‘bad law’ then you must face the consequences”, then what are the consequences for the UK:

        1. The UK loses authority when alleging violations of human rights abuses in other countries;
        2. The UK loses pretty much all authority when it criticises other European states from ignoring ruling of the Europen Court;
        3. The UK is likely to be viewed with suspicion from other states when it signs up to international treaties now that there is a precedent for the UK to ignore terms it doesn’t like; and
        4. Most importantly, the UK sends out a message that it is not attach quite so much importance to the rule of law as it once did.

        I, personally, believe that these damaging consequences to our reputation and influence are far, far worse than giving a few hundred or a few thousand prisoner the vote.

  4. I agree with David V Smith. Having worked in the Criminal Justice System I see the deprivation of the right to vote by convicted criminals as being as an essential part of their punishment as their deprivation of liberty. Basically it comes down to the issue of whether someone who has committed significant crime against Society should be permitted to continue to influence that Society whilst going through the punishment process. In my opinion they should not.

    1. Stephen says:

      So a prisoner who has served the punishment phase of their sentence but who is not released on risk grounds should continue to be punished then? Punishment without crime, eh?

      1. cidermaker says:

        The short answer to that is ‘yes’ Stephen. If a prisoner has passed the retribution stage but has not been considered to be sufficiently rehabilitated to no longer pose a threat to society then I see no reason why he/she should have the right to vote until they are ready to rejoin society. Don’t forget we are talking about very small numbers of potentially very dangerous prisoners here.

    2. Stephen says:


      That’s fine but not consistent with the government’s position that deprivation of voting rights is a punishment.

  5. Parliament has made a determination that those who breach to such a serious extent as to require imprisonment deserve to be denied the right to vote for those who make laws for the duration of their time in prison. Parliament has made that determination with a democratice mandate and the current parliament has voted (on a free vote) to retain that ban.

    Having made their position clear, the ECtHR needs to accept the position. Otherwise, Parliament should make it clear that they will make decisions on UK law. ECtHR only applies to UK because Parliament has decided it should. What Parliament giveth, Parliament can taketh away.

    1. Super Cyan says:

      The UK ratified the Convention in 1951 and by doing so accepted Article 46 which states ‘The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.’

      So until Parliament denunciates the ECHR (which is unimaginable) it already accepted to abide by decisions of the Court. And even withdrawing from the Convetion will have no effect on Hirst (No.2) as Article 58(2) states ‘Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective. ‘

      The point I’m trying to make is that what Parliament can giveth and taketh away oversimplifies the situation of prisoners votes. Hope that helps :)

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