Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008

Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008

"Prisoners’ voting rights (Hirst v UK)

47. Since our last Report, we have exchanged correspondence with the Ministry of Justice on the need to implement measures in response to the decision of the Grand Chamber of the ECtHR that the blanket ban on voting by prisoners in the UK is incompatible with the right to participate in free and fair elections, as guaranteed by Article 3, Protocol 1 ECHR.55 In our last Report, we noted that the Government intended to consider the issue of prisoners’ voting rights in a two-stage consultation which was expected to be completed in January 2008. A legislative solution was due to follow, after May 2008. In our last Report we expressed the view that the delay in this case was already disproportionate and recommended that the Government bring forward a solution as soon as possible.56

48. In August 2007, the Minister for Human Rights told us that the Government was
considering the responses to the first stage of consultation prior to deciding how to take this issue forward. The Government does not intend to use a remedial order in this case as it argues that Parliament must have an opportunity for a full debate on the issue.57 In September 2007, we wrote to ask the Minister for an updated timetable for the implementation of this judgment, and to confirm whether the Government intended to publish the responses to its first stage consultation.58 We also asked the Government to take into account the need to reform the law on prisoner voting when planning the timetable for the next election.59

49. In October 2007, Bridget Prentice MP, the Minister responsible for electoral
administration, told us that she could not provide an updated timetable, but explained that the Government would write to us with a clearer timetable “once the analysis of responses has been completed”. She explained that the Government would not publish the responses to the first stage consultation, although a summary would be included in the next stage consultation document. She said that she would be happy to make the individual responses available to the Committee once the next consultation paper had been finalised.60

50. In March 2008, it became clear that since October, the Government had submitted a
Revised Action Plan to the Committee of Ministers which indicated that it was undecided whether a second consultation, or a legislative solution, were necessary. The Government proposed no changes to its previous timetable, with a legislative solution still due in May 2008. We were disappointed to learn of these developments from the Council of Europe’s own website, despite the Minister’s reassurance that we would be kept informed of further work on this issue. We expect Government to keep us informed of developments in situations where we are actively engaged in correspondence about an issue.

51. We were surprised to read that the Government was not convinced about the need for legislative reform. The Grand Chamber judgment is clear. Section 3 of the Representation of the People Act is in breach of the Convention and legislative reform is therefore necessary. This view is supported by the declaration of incompatibility subsequently made by the Court of Session.

52. In March 2008, we wrote to the Minister asking for:
• a copy of any updated information sent to the Committee of Ministers;
• an explanation of whether the Government intended to produce a further, second
stage consultation and for any relevant timetable (if the Government was not
proceeding with the remainder of its consultation, we asked for an explanation);
• an explanation of the Government’s view that the incompatibility identified by the
Grand Chamber in Hirst v UK could be removed without legislative reform; and
• an up to date timetable for draft legislation and an explanation of whether the
Government intended these reforms to be in place in time for the next general
election.61

53. We are disappointed to report to both Houses that we have not yet received an
answer to these questions. In April 2008, Ms Prentice explained: As you will no doubt be aware the Governance of Britain Green Paper has placed a strong emphasis on the rights and responsibilities that attach to citizenship. The Government is currently considering whether this opportunity for a wide-ranging debate should also include voting rights for prisoners. Once we have made a decision on next steps, we will provide the Committee of Ministers with a revised implementation plan in time for its meeting in June 08. The implementation of Hirst is a sensitive and complex issue and we need to look very carefully at what the right approach should be and how it should be implemented.62

54. The Minister assured us that she would write to us in due course to provide fuller answers to our earlier questions.63 Shortly before the Committee of Ministers meeting on 5-6 June 2008, we contacted the Ministry of Justice to ask when a further response would be forthcoming. We then received a copy of the information provided to the Committee of Ministers dated 14 March 2008.64 This information makes clear that the Government now intends to include the issue of prisoners’ voting rights in the discussion of the Governance of Britain and the rights and responsibilities attached to citizenship. The Government is not proposing a new timetable for a legislative solution and we note with concern that there are no proposals for electoral reform in the Government’s draft legislative programme for 2008–09.

55. As part of the Governance of Britain programme, the Government expects shortly to
produce a Green Paper on a Bill of Rights and Responsibilities for Britain. We have
conducted an inquiry on a British Bill of Rights, investigating amongst other things,
whether the language of responsibilities should necessarily be adopted in a constitutional Bill of Rights. Several of our witnesses raised concerns about whether the addition of the concept of responsibilities might be a device for Government to limit the fundamental human rights of those individuals deemed to be “undeserving”. The Minister for Human Rights has explained the Government’s view:
Rights are not contingent on discharge of responsibilities. […], but there are
consequences for people not fulfilling their responsibilities […]. The fact that some
of those consequences may actually mean that one of your rights is temporarily
forfeited, if it is not the same thing, the punishment is in the law. The basic human
rights say the same and so they should.65

56. We reiterate our recent conclusion in our Report, A Bill of Rights for the UK?:
Human rights are rights which people enjoy by virtue of being human: they cannot
be made contingent on the prior fulfillment of responsibilites,

57. In that Report, we stressed that the ECHR and other human rights instruments already provide for certain rights to be limited when justified by legitimate, competing interests.66 The Grand Chamber has given clear guidance in this case about the balance that must be struck when removing the franchise from individual prisoners. It is worth setting out at length:
Prisoners in general continue to enjoy all the fundamental rights and freedoms
guaranteed under the Convention, save for the right to liberty, where lawfully
imposed detention expressly falls within the scope of Article 5 of the Convention
[…] Any restrictions on these other rights require to be justified although such
justification may well be found in the considerations of security, in particular the
prevention of crime and disorder, which inevitably flow from the circumstances of
imprisonment […]
There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the
acknowledged hallmarks of democratic society, for automatic disenfranchisement
based on what might offend public opinion. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol 1, which enshrines the individuals capacity to influence the composition of the law-making power , does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations. […] The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.

58. The European Court of Human Rights has given clear guidance that individuals’
fundamental human rights, including the right to vote, are not contingent on their
continuing to be ‘good citizens’. Interferences with those rights can only be justified in accordance with the law. When considering whether to limit an individual’s right to vote, proportionality requires a clear and close link to the specific conduct of the individual concerned. The Grand Chamber implies that this link should include some connection to the stability of the electoral system, the rule of law or the democratic settlement within a state. General breaches of any vague concept of civic duty are, in our view, unlikely to meet the standard of justification envisaged by the ECtHR.

59. The Government’s first consultation on the issue of prisoners’ voting rights was
launched almost a year after the Government had announced it and over two years after
the judgment of the Grand Chamber. This consultation made it clear that the Government considered that the right to vote should not be extended to all prisoners and that, in its view, the franchise was strongly connected to the concept of ‘good’ citizenship. The Government has refused to publish the responses to this consultation and now proposes further debate, without a timetable for action.

60. In July 2007, the Government’s Governance of Britain Green Paper heralded the launch of a wide range of initiatives to reinvigorate the UKs constitutional arrangements.67 These have included: a consultation on voting at weekends;68 a wider review of voting systems;69 a high level review on the notion of citizenship70 and a national review of citizen engagement. None of the papers in the Governance of Britain series published so far has mentioned the issue of prisoners’ voting rights.

61. We note that in the three years which have passed since the decision of the Grand
Chamber in Hirst, a number of European States have taken steps to address the issue of prisoners’ voting rights. In 2006, Ireland passed legislation to enable all prisoners to vote by post in the constituency where they would ordinarily live if they were not in prison.71 In the same year, Cyprus, which also previously had a blanket ban on voting for prisoners, passed legislation to provide for full enfranchisement of its prison population.72

62. Against this background, the Government’s change of approach and failure to set a
concrete timetable for its response raises serious questions about its reluctance to deal with this issue. In our previous reports, we have drawn attention to a number of cases where significant delay in implementation has tarnished the otherwise good record of the United Kingdom in responding to the judgments of the European Court of Human Rights. For the most part, these cases have been legally straightforward, but politically difficult. This case appears destined to join a list of long standing breaches of individual rights that the current Government, and its predecessors, have been unable or unwilling to address effectively within a reasonable time frame. The Government should rethink its approach.

63. We call on the Government to publish the responses to its earlier consultation and to publish proposals for reform, including a clear timetable, without further delay. A legislative solution can and should be introduced during the next parliamentary session. If the Government fails to meet this timetable, there is a significant risk that the next general election will take place in a way that fails to comply with the Convention and at least part of the prison population will be unlawfully disenfranchised".

Note: I will be dealing in length with this post very shortly, and also dealing with the codswallop from the likes of Iain Dale's Diary who has chosen to attack me rather than the government and address the real issues.

Iain Dale is an Arse...