Public Law Solicitors

By James Packer¹

In an ill-considered move, David Cameron threw some red meat to the Tory back benches by indicating at Prime Minister’s question time on 24th October that his government would not allow prisoners to vote notwithstanding the results of appeals to the European Court of Human Rights. Parliament is now due to vote on the issue. In this article, we examine the cases that have brought the question of prisoner voting to the fore and the implications of the decision for the United Kingdom.

Background – the status of the European Court of Human Rights

The Council of Europe was founded on 5 May 1949 by the Treaty of London. Initially comprising 10 member states, membership is open to all European states which seek European integration, accept the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms. It now has 47 members.
The Council adopted the European Convention on Human Rights and created the European Court of Human Rights (‘ECtHR’) to supervise member states’ adherence to those principles. The Committee of Ministers (comprising the Minister for Foreign Affairs of each member state of the Council) can refer a case back to the ECtHR if it considers that the state has not fully complied with a decision of the court. If the court agrees, the committee can decide to take action against the state for noncompliance – including, in theory, suspension or expulsion from the Council of Europe.

Background – UK practice on prisoner voting

Although there have been some recent minor liberalising measures, such as allowing prisoners who are detained while awaiting trial to vote, all convicted prisoners in the UK are prevented from voting by section 3 of The Representation of the People Act 2000. Practices across Europe vary, but the UK is at the far end of the spectrum in having such a complete ban in place.

The Cases: Hirst v United Kingdom (no.2)

Mr. Hirst who was serving a sentence for manslaughter, argued that the bar on voting breached his human rights. Specifically, he argued that the bar was a breach of the first protocol to the European Convention on Human Rights (which guarantees that there will be regular free elections in signatory countries).

Although his challenge was unsuccessful in the UK, Mr. Hirst was successful in his appeal to the ECtHR. It was however immediately noticeable that the ECtHR did not decide that any measure that prevents an individual from voting is unlawful. It allows member states to decide their own electoral laws, including measures that can restrict the franchise, so long as they are compatible with the aims of the convention. The ECtHR held that the United Kingdom’s blanket ban on prisoner voting breached the convention because it is a blanket ban and no consideration was given as to whether it was justified in individual cases and whether indeed there were classes of person who ought to be able to vote not withstanding the fact that they were serving a sentence in prison at the time.

Normally, where a provision of national law is held to breach the European Convention on Human Rights, the offending state is expected to take steps to remedy the position without further ado. In this case however, there were other cases coming before the ECtHR on related points. It was therefore finally agreed that implementation could be delayed until the UK had had six months to consider the judgment in the concluding case of Scoppola: those six months are up this week.

The cases: Scoppola v Italy³

In Scoppola (a judgement of a grand chamber) the ECtHR found that the Italian general ban on prisoner voting was compatible with the convention. This was because the general ban in Italian cases applies only to those given sentences of three years or more of imprisonment. The ECtHR had been unable to accept that the commission of trivial offences could proportionately result in the automatic loss of the right to vote. Just as importantly, because the Italian system distinguishes between petty offences and more serious offences the measure has within it elements of proportionality whereby the nature of the offence is related to the removal of the right to vote; the lack of which in the UK lay behind the decision in Hirst.

The ECtHR in Scoppola overturned previous case law, however, by refusing to follow an earlier position that in order for the removal of the right to vote to be proportionate, it would have to rest on the decision made by a Judge. The ECtHR stated that there was nothing that would prevent either a general measure (of the sort of the three year blanket ban in Italy), or alternatively a recent decision in individual case by an authorised person who is not a judge, from meeting the requirements of proportionality.

The implications of Scoppola for the United Kingdom

It has been clear since Hirst that a complete ban on prisoner voting cannot be justified. Since Scoppola it is also clear that a revision to the bar on voting so that it only prevented those serving sentences of three years or more would bring UK law into line. The UK could try to legislate between those two poles and set the bar at a period shorter than three years, though the ECtHR decided in Frodl v Austria that a period of one year breached the convention.

In Frodl however, the ban was again automatic and contained no reference to the nature or gravity of the offence. If the UK is absolutely committed to barring as many prisoners from voting as meets her obligations, the door seems to be open for a nuanced approach that would e.g. impose a blanket ban where a sentence of three years is imposed and give discretion to a judge on sentencing where the sentence was between one and three years duration.

Sadly, it appears that this option will be rejected. What happens then?

The consequences of ignoring the ECtHR

It appears very likely that Parliament will back the government in its refusal to allow prisoners to vote. Should that happen, the next step is that the Council of Ministers are very likely to refer the issue back to the ECtHR, starting a process that may well see the UK suspended from the Council of Europe.

The wider implications

It is important to recollect that the United Kingdom plays an active role on the international stage. A failure to abide by its obligations towards the other members of the Council of Europe by taking the unprecedented step of flatly refusing to implement the judgement of the ECtHR must lead other countries to wonder whether in the future the United Kingdom will live up to its obligations towards them.
Further abroad, the UK is playing directly into the hands of other nations with whom it is engaged in a human rights dialogue, most notably those of Sub Saharan Africa and China. From those corners of the Earth the claim often comes that human rights are not universal in nature and that the West should not seek to impose its own standards upon those in other parts of the world. Whilst that may be a convenient fig-leaf for doing inaction on their part, the sad truth is that by refusing to accept the standards imposed by a Court that was set up by consensus within Western Europe, Mr Cameron has made negotiations of this nature far more difficult.

It is also possible that a situation could arise whereby European Union national prisoners in the United Kingdom must be allowed to vote (in European elections) by law while British prisoners could be prevented from doing so.

The European Union has acceded as a body to the European Convention on Human Rights and considers that those standards and principles are applicable across the EU as a whole. As a general principle therefore, the standards upheld by the ECtHR will also be upheld by the Court of Justice of the European Union. An outright refusal to allow EU national prisoners to vote may give rise to a claim that their community rights are being breached. EU nationals in the United Kingdom do not have the right to vote in general elections but can vote in both local elections and, more importantly, in European elections.

It is hard to say how this government could successfully defend a claim brought by an EC national who wished to vote in the European election but was prevented from doing so by virtue of his status as a convicted prisoner in the United Kingdom, at least if his sentence was for less than three years.