7 May 2010
See a more recent post on this topic here
One of the enduring images of the 2010 General Election will be of long queues of people turned away from polling stations due to lack of facilities. This may well result in legal action. But according to Lord Pannick, the worse scandal may be the exclusion of 85,000 prisoners, which he says is “a constitutional disgrace that undermines the legitimacy of the democratic process”.
The BBC reports this morning that hundreds of voters were turned away from polling stations throughout the UK. This was initially blamed on a higher than expected turnout. The Electoral Commission has promised a “thorough review“, but legal action may follow from the individuals, who have been denied their basic rights, but also from the parties who may argue that marginal results would have been different if people hadn’t been turned away. In the likely outcome of a hung parliament, every seat counts and litigation may therefore follow (Update – Afua Hirch in The Guardian: Legal challenge to polling stations could result in byelections; meanwhile, Liberty, the human rights organisation, says that it will investigate the issue on behalf of voters.)
Those who have been disenfranchised may be entitled to claim under the Human Rights Act 1998. Article 1, Protocol 3 of the European Convention provides:
“The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
This Article imposes obligations on States, and the provision includes the right to vote. Voters should be able to claim for damages under section 8 of the Human Rights Act if they can prove that they were denied a vote due to administrative incompetence, which appears to have been the case in some places. Whilst high turnout may have been a factor, voters will argue that high turnout has been predicted for a while, and should have been planned for. Similar claims were made in respect of the controversial 2000 presidential election in the United States, which was ultimately decided by the US Supreme Court, but resulted in months of paralysis.
Whilst a few hundred appear to have been affected by administrative incompetence, Lord Pannick, barrister and cross-bench peer, argues that the absolute ban on prisoners voting runs contrary to repeated decisions of the European Court of Human Rights. We have posted recently on the tens of thousands of potential compensation claims that may result, which Lord Pannick estimates will be worth at least £750 each. Similar claims may be available to those who were denied the vote for other reasons.
Lord Pannick is scathing of the Government’s failure to implement the European decisions. He says:
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29 April 2010
R (D and M) v Secretary of State for Work and Pensions; R (EM) v Secretary of State for Work and Pensions  EWCA Civ 18
With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed).
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27 April 2010
Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment
The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.
We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and
“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”
The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.
The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.
In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals to vote.
22 April 2010
A prisoner is suing the UK Government in the European Court of Human Rights for the right to vote in the upcoming General Election. With voting registration already closed, he won’t be voting in the election, but he may receive compensation. This could open the door to claims from tens of thousands of prisoners in the UK.
The BBC reports that Leon Punchard, 19, who is serving an 18-month sentence at Norwich prison for burglary, has filed an application to the European Court for a declaration and compensation.
We have already posted on the ban on prisoners voting (see here and here). Four years ago, the European Court of Human Rights criticised the policy in Hirst v UK, which arose out of the 2002 case of R v Home Secretary ex parte Hirst. The European Court held that Section 4 of the Representation of the People Act 2000 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 Government insists that it is still considering the responses to its second stage consultation on the issue, despite it closing over six months ago. With voter registration for the 2010 General Election closing on 20 April, prisoners will not get their chance to vote in a general election for at least a few more years.
However, Mr Prichard may well win a compensation payment from the UK Government, which the European Court of Human Rights has the power to award in cases where a contracting state has breached a citizen’s human rights. This could open the door to the other 87,883 serving prisoners to bring their own legal actions.
12 April 2010
Prisoners will be unable to vote in the general election despite the European Court of Human Rights ruling almost five years ago that the blanket ban was unlawful.
The House of Lords discussed the issue in the small hours of 7 April 2010 when Lord Ramsbotham, former Chief Inspector of Prisons, tabled an amendment to the Constitutional Reform and Governance Bill which would have removed the ban.
Lord Ramsbotham lamented that the Government was “frightened of offending reactionary public opinion by appearing not to be tough on criminals” and “determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.”
The Government insists that it is still considering the responses to its second stage consultation, despite it closing over six months ago.
The Parliamentary Joint Committee on Human Rights has also expressed serious concern, noting that the Government risks not only political embarrassment at the Council of Europe, but will be in breach of its international obligation to secure the full enjoyment of Convention rights for everyone within its jurisdiction.