United Kingdom: The May General Election will be Incompatible with Prisoners' Human Rights - What are the implications?

United Kingdom: The May General Election will be Incompatible with Prisoners' Human Rights - What are the implications?

20 April 2010

Article by Jennifer Spence and Carron Rand

Introduction

With the general election having been called to take place on 6 May this year, it is likely that, on the date of the general election, there will be thousands of sentenced prisoners who will be prevented from voting. This remains the case, despite warnings from the European Court of Human Rights (ECtHR), the Committee of Ministers of the Council of Europe and the Joint Committee on Human Rights in the UK that the UK provision imposing a "blanket ban" on voting by any sentenced prisoner is incompatible with the European Convention on Human Rights (ECHR).

This issue has been, and continues to be, the subject of much debate and, as politicians prepare for the general election, they are being reminded of the potential consequences of failing to fully address this issue before votes are cast. It has been suggested that prisoners could sue if they are not allowed to vote in this year's general election, but could there be other concerns for MPs who are voted in by an electorate that has been established, in part, by a provision which has been held by the ECtHR as unlawful?

A reluctance to take action

In the UK, sentenced prisoners have been prevented from voting for over 140 years. The most recent legislation, section 3 of the Representation of the People Act 1983, provides that a convicted prisoner is "legally incapable" of voting at any parliamentary or local government election while serving his sentence in prison.

There are many arguments both for and against the ban on sentenced prisoners voting. Some argue that removing the right to vote from prisoners is part of their punishment, an argument that is often met by the assertion that this contradicts the basic idea that we are all political equals.

Over the years, politicians from political parties across the board have supported the blanket ban on voting by sentenced prisoners. Although, more recently, some opinions are moving away from the traditional views, no action has been taken to remove the blanket ban that has been in force for over a century.

Steps taken so far

The UK courts accepted the prohibition on prisoners' votes until 2004 when the ECtHR decided the case of Hirst v United Kingdom (No 2) in which a prisoner successfully challenged the blanket ban. The ECtHR decided that an absolute bar on voting by any serving prisoner in any circumstances breached Article 3 of Protocol No. 1 of the ECHR. That Article provides that parties to the Convention undertake to "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." In Hirst, the ECtHR noted that there was no evidence that the UK had ever tried to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners. The Court stressed that the right to vote is the "indispensable foundation of a democratic system" and that it is a right, rather than a privilege.

It was accepted, however, that, in particular circumstances, the right to vote may be lost as part of a prisoner's sentence.

In light of the ECtHR's decision, the UK Government is obliged to take the necessary steps to amend the provision so that it no longer breaches the ECHR. The steps taken so far, however, have been limited.

At the end of 2006 the Government began a two-stage consultation process. The first stage of the consultation was intended to consider the principles of prisoner enfranchisement and the options available for implementing the judgment in Hirst. The consultation paper confirmed that the Government was firm in its belief that individuals who committed an offence serious enough to warrant a term of imprisonment should not be able to vote while in prison but at the same time recognised the need to respond to the judgement in Hirst. The consultation document stated that the Government was opposed to enfranchising all prisoners and so it would not offer this as a possible option for change. Responses to the first stage of the consultation were "sharply divided", so when the second consultation paper was issued in 2009, it revisited some of the questions from the first consultation paper, as well as looking at the detail of how the judgment might be implemented. The Government intended to consider the next steps towards implementing the judgment in legislation after the consultation ended in September 2009, but with the dissolution of the current Parliament, and the next general election imminent, it is now too late for the present Government to bring forward any changes in the law.

Between the two consultation papers, Court of Session Judges in Scotland considered the voting rights of prisoners in 2007 in the case of Smith v Scott. The issue was of particular importance at that time as Scottish parliamentary elections were due to take place the following year. As a result, the Court wanted to establish what the Government proposed to do, given that, as matters stood, the Scottish parliamentary elections in May 2007 would not comply with the ECHR. The Advocate General, representing the Secretary of State for Scotland, argued that the Court should not make a declaration that section 3 of the 1983 Act was incompatible with the ECHR. He stated that, while it would be "technically possible to change the law in time for the election, the Government had decided that in all the circumstances it was not appropriate to bring forward new arrangements in a rush." He stressed that this was a complex and controversial matter and there was a wide range of possible changes to present law, as well as competing views as to what these changes should be. The Court rejected this argument, however, and made a declaration of incompatibility.

This decision does not mean, however, that the law itself has changed.

The potential high cost and consequences of delay

In the absence of steps to implement the decision of Hirst, the law governing prisoners' disenfranchisement in the UK remains incompatible with the ECHR. There has already been a delay in addressing this issue, and it is likely that costs have also already been incurred in various forms, from the breakdown of relationships of trust to financial costs incurred by legal challenges. At this stage, it is only possible to speculate on what further costs and consequences might be incurred as a consequence of the delay in acting.

Individuals may decide to raise legal challenges against the Government for breaching the ECHR; but it seems the Committee of Ministers may also be left with little option but to take formal action. The Committee of Ministers, the main political body of the Council of Europe, has specific responsibility for supervising the execution of the ECtHR's judgments.

As recently as March 2010, the Committee reiterated its previous concerns in suggesting that the UK's delay in acting creates a significant risk that this year's general election will be executed in a way that fails to comply with the ECHR. The Committee strongly urged the Government to "rapidly adopt measures, of even an interim nature, to ensure the execution of the Court's judgment before the forthcoming general election." In light of the fact that measures have not been adopted, the question is whether this is one of the rare occasions on which the Committee will be obliged to take action to make sure that the UK complies with the ECtHR's decision in Hirst. If so, what is that action likely to be?

The Committee of Ministers is allowed to exercise its influence fully to persuade States to comply with the ECtHR's judgments, not least by noting its failure to comply with the Convention and "taking appropriate action", although there is no guidance on what "appropriate action" might involve.

From June 2010, a new rule will be introduced so that, if the Committee is of the view that a State "refuses to abide by a final judgment in a case", it will have the authority to refer the question as to whether the State has failed to fulfil its obligation to the ECtHR. Given the timing of the introduction of this rule, however, it will not assist in addressing the issue of prisoners' rights in the UK before the general election.

The Joint Committee on Human Rights (JCHR) is the domestic body responsible for reviewing the implementation of ECtHR judgments in which the UK has been found to be in breach of the ECHR. The Committee has also expressed concern over the delay in addressing the issue of prisoners' rights.

The Government has advised that it takes the UK's responsibilities under the ECHR in respect of the ECtHR decisions seriously, but that it believes that there are legitimate reasons for removing a prisoner's right to vote. The Government has suggested that, even if the concern of the ECtHR expressed in Hirst has not been remedied by the next general election, this would not call into question the legality of the elections. There are those who would take issue with the Government's position on the legality of the general election in these circumstances, however, and opponents of the ban on prisoners' right to vote argue that the general principles of democracy will be undermined if the election goes ahead without the issue of prisoners' right to vote being resolved.

Perhaps the most immediate and obvious cost of the delay in taking steps to comply with the ECtHR's decision – and the one that will undoubtedly gain the most publicity - will be the potential financial burden incurred. Even if only a small proportion of the thousands of sentenced prisoners who are prevented from voting raise legal challenges against the State, the sums involved in terms of legal expenses and potential compensation payments would be substantial. The electorate will ultimately meet those substantial costs, which will be paid from public funds.

Conclusion

Despite these warnings and potential consequences, the UK law, which determines who will be able to vote in this year's general election, will remain incompatible with the ECHR when the voting stations open on 6 May 2010. The extent of the impact and cost of this position will only become clear when the election of the Parliament is complete. The effect upon the democratic rights of the prisoners, who will be denied the right to vote, will be instantly felt by them. The extent of the financial costs to the taxpayer and the potential constitutional cost to Parliament, whose legality may be brought into doubt, may not be instantly clear, but are likely to be significant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. http://www.mondaq.com/article.asp?articleid=98678&login=true&newsub=1

n.b. The above article is weak in some respects, particularly it fails to take into account this latest case, and I am presently writing a response which will address those weaknesses.