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Wednesday, April 20, 2011

A brief note on Standard Note SN/IA/5941

A brief note on Standard Note SN/IA/5941

"In the European Court of Human Rights decision in Hirst v UK No.2 and Greens and MT the UK’s blanket ban on prisoner enfranchisement was deemed to be a violation of Protocol 1 Article 3 of the European Convention on Human Rights. On 12 April 2011 the Court’s Grand Chamber rejected the Government’s request for a reconsideration of the earlier rulings. Therefore, the Court’s judgment of November 2010 in Greens and MT became final (under Article 44 of the European Convention). The UK was given a six-month deadline from 11 April in which to enact legislation to comply with the Court’s rulings in Hirst 2 and Greens and MT.

The Government is reluctant to allow all prisoners to vote and to pay compensation to prisoners who have been denied voting rights, but is also aware of its obligations under international law and under the European Convention on Human Rights. Parliament debated the issue in January and February 2011, voting in February in support of a motion to maintain the ban on prisoner enfranchisement

How should or could the UK respond to the Court’s rulings? What would be the consequences, for example, of the Government allowing a partial enfranchisement? Could the Government simply ignore the ruling or refuse to remedy the current situation? Could the UK derogate from the Convention or enter a reservation and thereby circumvent the ruling; or withdraw from the Convention and/or jurisdiction of the Court altogether? The consequences of non-compliance have given rise to discussion and some disagreement among lawyers and politicians, and the Government has said it does not intend to withdraw from the Convention.

Given the first paragraph, where is the Government's public power to be reluctant? According to Foulkes' Administrative Law, one of the basic and traditional functions of the State is the need to attempt to secure human rights. What about the rights under English law, doesn't the Government have obligations? It wasn't Parliament that debated the issue, some MPs do not Parliament make. They are getting above themselves. In any event, the motion was legally flawed and is null and void.

The Republic of Ireland in 2006 responded by allowing all prisoners to vote to fully comply with the Hirst v UK (No2) ruling. There was no media or public uproar at this decision. The consequences, in my view, for partial franchise would be that it would not meet the Hirst test as expressed in Frodl v Austria, therefore not satisfy the Committee of Ministers and the Court. In addition, I predict further litigation and this is hard to justfy in costs to the taxpayers. No, the Governemt cannot legally ignore the rulings or refuse to remedy the breach of human rights. There is no legal way to circimvent the rulings. The UK can withdraw from the Convention and leave the Council of Europe and EU, however the liability for the breaches of human rights remain in place. There is no escape. Politicians are required to be law abiding. They will obey the law or leave Parliament.

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