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Monday, March 14, 2011

Communication from the government in the case of Hirst No. 2 against the United Kingdom (Application No. 74025/01)



Contact: Simon Palmer

Date: 01/03/2011

DH - DD(2011)139 1

Item reference: 1108th meeting DH (8-10 March 2011)

Communication from the government in the case of Hirst No. 2 against the United Kingdom (Application No. 74025/01).

Information made available under Rule 8.2.a of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

* * *

Référence du point : 1108e réunion DH (8-10 mars 2011)

Communication du gouvernement dans l’affaire Hirst n° 2 contre le Royaume-Uni (Requête n° 74025/01) (anglais uniquement).

Informations mises à disposition en vertu de la Règle 8.2.a des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

Note from the Government of the United Kingdom to the Committee of Ministers

Prisoner Voting Rights

The UK Government wishes to update the Committee of Ministers on prisoner voting rights given recent developments in the national context, and the UK’s referral to the Grand Chamber of the Greens and MT judgment against the UK.

In its judgment in Hirst (No.2), the Court acknowledged that the right to vote under Article 3 of the First Protocol of the European Convention on Human Rights was not absolute, and that contracting states to the Convention had to be given a margin of appreciation to decide what limitations on that right would be proportionate but that a blanket ban was outside that margin of appreciation. On 23 November 2010, the Court handed down a further judgment, Greens and MT, in which it reaffirmed that discretion and set a deadline for the introduction of legislative proposals removing the ban. On 17 December the Court of Appeal handed down its judgment in the Chester case. The Court considered Hirst, Frodl and Greens and MT, but declined to offer an advisory opinion, concluding that the content of legislation on prisoner voting is a political matter to be decided by the Government and not the courts.

The Minister for Political and Constitutional Reform announced to Parliament on 20 December 2010 the Government’s planned approach to implementation.

The Government announced that it would bring forward legislation for Parliament to debate providing that the blanket ban in the existing law be replaced. The Government proposed that prisoners sentenced to less than four years would retain the right to vote, although the sentencing judge would have discretion to remove it if considered appropriate. Offenders sentenced to four years or more would be barred from voting. The Government proposal sought to maintain the link between serious offending and the sanction of removal of the right to vote.

Since that announcement, the UK Parliament has considered the issue on a number of occasions and the matter has been formally debated on two separate occasions. The first was a Westminster Hall adjournment debate on the subject on 11 January 2011 in which many MPs voiced views strongly against giving prisoners the right to vote. The Minister for Political and Constitutional Reform spoke for the Government. The second, on 10 February 2011, was an all-day debate on the floor of the House of Commons on a motion put forward jointly by two senior backbench MPs (from the opposition Labour Party and the Conservative Party). The motion was:

"That this House, noting that the ECHR commented in Hirst v. the United Kingdom that ‘it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote’, and conscious of the treaty obligations of the UK, is of the opinion that (a) legislative decisions of this nature should be a matter for democratically elected lawmakers and (b) that on the merits of the issue, the current policy by which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand, is confirmed."

The motion was carried by 234 votes to 22 (Government ministers and their official Opposition counterparts abstained from voting). The Attorney General spoke for the Government highlighting to the House the international legal obligations to which the UK is subject. The vote is not binding on the Government but provides a clear indication of the nature and strength of feeling in the House of Commons. Clearly, the Hirst and Greens and MT judgments pose the UK Government significant difficulties.

In light of these debates, and conscious of its obligations under the Convention, the UK Government has requested the judgment in Greens and MT be referred to the Grand Chamber of the European Court of Human Rights, pursuant to Article 43 of the Convention. The Government considers it proper that confronted with such difficulties in reconciling the judgments with the national context that these matters are put to the Court before the judgment becomes final. Since the Greens and MT judgment effectively confirms the Hirst judgment, the letter of referral requests that the Grand Chamber reconsider Hirst on the basis that:

§ the margin of appreciation should be broader than the Court stated – and should not exclude a ban on prisoners voting in the UK context;

§ the UK sentencing regime makes imprisonment a last resort and allows judges to take account of all the circumstances of the offender in determining the term served – so a custodial sentence meets a level of seriousness sufficient to warrant disenfranchisement, and is applied after consideration of the individual case;

§ the recent debates in Parliament demonstrate the strong views of democratically elected representatives, and the fact that modern day opinion is supportive of the ban;

§ since Hirst (and Greens and MT), the domestic courts have opined on the matter (Chester) restating that there is a range of reasonable views on the subject of prisoners voting, and that many take the view that a bar where a custodial sentence is imposed should properly be within the margin of appreciation of the UK;

§ Member States take many different approaches, which reinforces the notion of a wide margin of appreciation; and disenfranchisement in the UK ends when detention ends, which is a matter for the judge – so again, the length of disenfranchisement is based on the judicial consideration of the individual’s circumstances.

The referral letter suggests to the Court that the arguably contradictory lines of jurisprudence (Frodl v Austria and Scoppola v Italy) is another reason the Grand Chamber may wish to reconsider the matter.

A copy of the letter requesting referral of the judgment is enclosed for information.

The Government understands that one of the applicants in the Greens and MT case (Greens) has also sought a referral of the judgment to the Grand Chamber.

The Government awaits the Court’s response to the referral requests.

1 March 2011


Text for letter seeking referral to the Grand Chamber

Dear Sir,

Applications nos. 60041/08 and 60054/08, Greens & M.T. v United Kingdom

1. On 23 November 2010, the Fourth Section of the Court published its judgment in the above cases. The Government hereby request, pursuant to Article 43 of the Convention, that this judgment be referred to the Grand Chamber of the Court.

2. In these cases, the applicants complained that their exclusion from voting in the United Kingdom’s elections to the European Parliament in June 2009 and in the United Kingdom General Elections in May 2010 constituted a breach of their rights under Article 3 of the First Protocol to the Convention (“Article 3”). In its judgment, the Fourth Section decided, inter alia:

(1) That there had been a violation of Article 3 in the applicants’ cases.

(2) That that violation had originated in the failure of the United Kingdom to execute the judgment of the Court in Hirst v United Kingdom (no. 2) (“Hirst”).

(3) That the United Kingdom must:

(a) bring forward, within six months of the date upon which the judgment becomes final, legislative proposals intended to amend the Representation of the People Act 1983 (“the 1983 Act”) and, if appropriate, the European Parliamentary Elections Act 2002 in a manner which is Convention-compliant; and

(b) enact the required legislation within any such period as may be determined by the Committee of Ministers.

3. In reaching its conclusion that there had been a violation of Article 3, the Fourth Section followed the judgment of the Grand Chamber in Hirst, as it was bound to do. Similarly, the Government had been constrained to accept that, if the applications were admissible, the judgment in Hirst required that the Fourth Section find there to be a breach of Article 3.

4. However, the Government now request that the Grand Chamber reconsider its judgment in Hirst, and the application of that judgment to the facts of the present cases, on the following grounds:

(1) In §78 of Hirst, the Grand Chamber recorded the submission of the Government that the margin of appreciation, already broad in the field of restrictions on voting rights, was particularly broad on the issue of the voting rights of convicted prisoners, because the legislature and the domestic courts had considered the matter, and there was no clear consensus among Contracting States. In those circumstances, the Government submitted that “it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment”. However, the Grand Chamber rejected that submission, and proceeded to hold that the margin of appreciation was not broad enough to permit the exclusion from the franchise by s. 3 of the 1983 Act of all convicted prisoners (§82).

(2) The Government submit that the Grand Chamber under-stated the breadth of the margin of appreciation which applies in the particular context of restrictions on the voting rights of convicted prisoners and should now hold that s. 3 of the 1983 Act falls within the margin of appreciation of the United Kingdom.

(3) It is entirely reasonable to hold a position that in the context of the legal system of the United Kingdom, persons who have contravened the norms of society in so serious a manner as to warrant imprisonment should forfeit the privilege of participation in the democratic process for the duration of that imprisonment. It is to be noted that it is only a very small percentage of those who commit crime who are sentenced to a term of imprisonment. Imprisonment is explicitly reserved for those cases where the offence is so serious that neither a fine alone nor a community sentence can be justified and must be for the shortest term commensurate with the seriousness of the offence. In exercising their discretion to determine the time which ought to be served in prison in such a case the Courts take account of the seriousness of the offence, the impact of the offence on the victim and on the community, and the individual circumstances of the offender. That these are also the factors which should be taken into account in determining whether the right to participate in elections should be suspended is a principled view strongly held by many in the United Kingdom, and by their democratically accountable representatives. For example, on 10 February 2011, a debate was held in the House of Commons on the issue of prisoners’ voting rights, following which a motion calling for the retention of s. 3 of the 1983 Act was passed by Parliament by a large majority, 234 to 22.

(4) In §79 of Hirst, the Grand Chamber held that the Government was not entitled to rely on the margin of appreciation which would ordinarily flow from Parliament having decided upon the ambit of s. 3 of the 1983 Act because, in its view, there had been an absence of debate by Parliament of the continued justification for s. 3 in light of modern-day penal policy and of current human rights standards. In fact however there had been a relatively recent amendment to s. 3 (in 2000), whereby prisoners on remand were removed from the ambit of the exclusion, and which had necessitated an examination of the justification for s. 3. In any event, as noted in the previous sub-paragraph, there has now been detailed consideration of the issue in Parliament. The Attorney General spoke for the Government in the debate, drawing Members' attention to the Convention jurisprudence and to the Government's obligation to implement the Hirst judgement. Nonetheless, there was no consensus in favour of narrowing s. 3 still further. On the contrary, there was a considerable majority in favour of not doing so.

(5) In §80 of Hirst, the Grand Chamber dismissed the relevance of the domestic courts having ruled upon s. 3 of the 1983 Act, on the grounds that the Divisional Court in the applicant’s case had not undertaken any assessment of the proportionality of that provision. In fact, the Divisional Court did examine the proportionality of s. 3, but held that the judgment of the legislature should be respected (§§40-41 of the judgment). This was a factor in favour of, and not against, a broad margin of appreciation in the Hirst case. Further, since Hirst, the Court of Appeal in Chester has examined the issue of prisoners’ voting rights and noted that “[t]here are deep philosophical differences of view between reasonable people upon the question of prisoners' suffrage” (§32). The views of the domestic courts are exactly those relied upon by the Government: the issue of the exclusion of convicted prisoners from the franchise is a matter on which reasonable persons may adopt differing views, and falls quintessentially within the margin of appreciation.

(6) In §81 of Hirst, the Grand Chamber dismissed the relevance of the wide spectrum of different approaches which have been adopted by Contracting States (under which at least 13 other states had provisions similar to s. 3). In the vast majority of other contexts, the Court has regarded the absence of consensus amongst Contracting States as tending in favour of a broad margin of appreciation. It is submitted that that is, and should in principle be, the position in this context. It is unclear why this should not also be the case for prisoners’ voting rights.

(7) In §82 of Hirst, the Grand Chamber expressed its conclusion on s. 3, ruling that a “blanket restriction on all convicted prisoners in prison” which applied “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances” fell outside any acceptable margin of appreciation. The Government would wish the Grand Chamber to have the opportunity to re-visit that conclusion which, it is submitted, does not take sufficient account of the reasonable view that all offences which, in the judgement of the Courts, are serious enough to warrant imprisonment are also serious enough to warrant an exclusion from the franchise for the duration of imprisonment. Unlike the position adopted in some member states, disenfranchisement does not continue after release from custody and the length of disenfranchisement is thus precisely linked to the gravity of the offence and the individual circumstances of the offender.

5. The Government would also point out that the judgments of the First Section of the Court in Frodl v Austria and of the Second Section in Scoppola v Italy may have created some confusion with regard to the scope and effect of the ruling in Hirst. As indicated above, the Government recognise that in the present cases the Chamber was bound to follow the Grand Chamber’s judgment in Hirst. The Government submit that, if Hirst is to be upheld, the Chamber’s approach in these cases is strongly to be preferred to at least one reading of the judgments in Frodl and Scoppola. The Government submit that this is another reason why the Grand Chamber should take the opportunity to reconsider this matter.

6. For the reasons set out above, the Government submit that the judgment in Greens & MT raises serious questions affecting the interpretation or application of Article 3, and serious issues of general importance, and that it should be referred to the Grand Chamber of the Court.

Yours etc.

1 In the application of Article 21.b of the rules of procedure of the Committee of Ministers, it is understood that distribution of documents at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers (CM/Del/Dec(2001)772/1.4). / Dans le cadre de l'application de l'article 21.b du Règlement intérieur du Comité des Ministres, il est entendu que la distribution de documents à la demande d'un représentant se fait sous la seule responsabilité dudit représentant, sans préjuger de la position juridique ou politique du Comité des Ministres CM/Del/Dec(2001)772/1.4).


IanPJ said...

There is no doubt that a sensible debate needs to take place, one that is based upon law rather than political rhetoric.

If for instance we were to look at the variances between common law and statute law, then we would probably arrive at a much more amicable conclusion, and one that would have the benefit of gaining public support.

If we look at the Common Law offences, that of Murder, Assault (which would include the more serious stuff such as Rape, GBH, ABH and the like), Fraud and Theft, and then take a timeline for the seriousness with a removal of the right to vote only for the more serious, that would probably gain public acceptance, i.e. the Saturday night brawl with an ABH charge vs Murder.

Obversly, taking account of statute law offences, which would include traffic offences, failure to pay fines, TV licence and similar, which are in essence a punishment for the failure to comply, rather than a harm against others, then these punishments should not include withdrawal of the right to vote.

However I am sure that this is not the object of the exercise, as both the EU and the COE would like to see Common Law in the UK well and truly buried.

Tom F said...


Do you have any information or estimate of the costs, (legal, Government staff, ECHR etc etc) involved since you first started to seek voting rights for prisoners?

Do you have any idea of the likely costs involved in this latest appeal to the Grand Chamber?

Tom F

jailhouselawyer said...

Tom F: It runs into £millons.

You could try a FOI request.

QCs and consultants do not come cheap...

Tom F said...


Thanks for your very prompt response.

I had suspected that the cost would be £'millions (maybe £10's of millions) but just wondered if you had any gut-feel for the grand total.

Regretably I do not really share your optimistic view that a FOI request would shed much light (I might try one to see what sort of response I get).

If you have an opportunity, could you ask your legal people what their rough estimate would be (£1m, £5m, £10M or whatever)?

Obviously the historic cost is only of academic interest, but it would be interesting to know how much this latest saga is going to cost at a time of severe "budget deficits"


Tom F

jailhouselawyer said...

Tom F: All I really know is that it cost at least £2m for my 25 years, and that is a conservative estimate. The figure the MoJ gives is approximately £40,000 per prison place per year. However, that does not include police and court and other costs like psychologists and probation, otherwise it is closer to £200,000 each.

Then the public are paying for both the public and private prison systems, not just one system.

Yesterday, it was reported that in the Twitter libel case the costs will be £40,000. And that was a simple case.

In my case there was 3 High Court cases. My lawyers do not charge very much, however, its the cost of defending my legal challenges. The government employs QCs and juniors and solicitors and advisers and consultants, and this has all gone on for over 5 years. Then there is the time and money spent in Strasbourg, and in the Commons and Lords. Reports being written and published.

£10s of millions.

But it isn't over yet. Neither Labour nor the Coalition have admitted that the constitutional reforms are as a result of my case. It's a simple case but goes to supremacy of parliament, separation of powers, EU law and the HRA, etc, etc. I destabilised the status quo. I succeeded where Guy Fawkes failed. They don't really know how much damage I have done. I was not joking when I said I have taken the Executive, Parliament and Judiciary hostage.

They could have saved the taxpayers a lot of money had they spoken to me and sought my advice through the legal minefield. Don't forget, the compensation bill stands at £135m. If prisoners don't get the vote come May 5 in Scotland, Wales and Northern Ireland and AV in England, it will be £270m.