The human rights cost of preventing people from voting

The human rights cost of preventing people from voting

by Adam Wagner

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).

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.

85,000 claims?

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:

For the United Kingdom now to hold a general election that defies the European Court’s ruling on eligibility to vote is, in itself, a matter of deep regret for a society that prides itself on the rule of law and democratic accountability.

The continuing ban also has more direct adverse consequences. It inevitably deters prisoners from taking an interest in the society that the vast majority of them will be rejoining at the end of their sentence. And it deters many candidates from taking an interest in penal issues when there are no votes to be had from those most directly affected.

He also argues that whilst votes for felons is not a popular slogan, “one of the core functions of the European Court is to protect the fundamental rights of unpopular sections of our society… the more unpopular the victim, the stronger the need for proper judicial protection since political support will not be available.”

May be a while yet

The result of the UK General Election is not yet known. But if the Conservative Party do manage to form a Government, one of their manifesto pledges is to repeal the Human Rights Act and replace it with a Bill of Rights. The form and content of this Bill remains unknown, but The Lawyer highlighst a February 2010 speech by David Cameron, the party leader, when he said the change would be “so that Britain’s laws can no longer be decided by unaccountable judges.”

In light of David Camerons speech and Lord Pannick’s comments that judges are more likely than politicians to make unpopular decisions, it may be a while yet before prisoners and ex-convicts have the privilege of voting, or even of being turned away due to administrative incompetence.

For the United Kingdom now to hold a general election that defies the European Court’s ruling on eligibility to vote is, in itself, a matter of deep regret for a society that prides itself on the rule of law and democratic accountability.

The continuing ban also has more direct adverse consequences. It inevitably deters prisoners from taking an interest in the society that the vast majority of them will be rejoining at the end of their sentence. And it deters many candidates from taking an interest in penal issues when there are no votes to be had from those most directly affected.

He also argues that whilst votes for felons is not a popular slogan, “one of the core functions of the European Court is to protect the fundamental rights of unpopular sections of our society… the more unpopular the victim, the stronger the need for proper judicial protection since political support will not be available.”

May be a while yet

The result of the UK General Election is not yet known. But if the Conservative Party do manage to form a Government, one of their manifesto pledges is to repeal the Human Rights Act and replace it with a Bill of Rights. The form and content of this Bill remains unknown, but The Lawyer highlights a February 2010 speech by David Cameron, the party leader, where he said the change is “so that Britain’s laws can no longer be decided by unaccountable judges.”

In light of Mr Cameron’s speech, and Lord Pannick’s comments that judges are more likely than politicians to make unpopular decisions, it may be a while yet before prisoners and ex-convicts have the privilege of voting, or even of being turned away due to administrative incompetence.