United Kingdom: Prisioners' Voting Rights - 6 Months Deadline

United Kingdom: Prisioners' Voting Rights - 6 Months Deadline

19 April 2011

Article by Jennifer Spence and Carron Rand

The decision of the ECtHR is now final – The UK Government has 6 months to address the blanket ban on prisoners' votes

The latest decision from the European Court of Human Rights (ECtHR) on the issue of prisoners' voting rights is now final. The judgment of the Court in Greens and M.T. v the United Kingdom, issued in November 2010, was finalised on Monday 11 April 2011, despite referral requests having been submitted.

The procedures of the ECtHR provide that parties can, within three months from the delivery of a judgement, request that the case be referred to the Grand Chamber for review, if it raises a serious question of interpretation or application, or a serious issue of general importance. Such requests are examined by a Grand Chamber panel of five judges and if accepted, the Grand Chamber would render its own decision on the case, which would then be final. All final judgments of the Court are binding on the respondent States concerned.

In the case of Greens and M.T. v the United Kingdom, Mr Greens, one of the two applicants, (both of whom were prisoners at Peterhead Prison at the time of application) and the UK Government, submitted referral requests. However, those requests were rejected, when the five-judge panel of the Grand Chamber met on 11 April 2011 and finalised the judgement issued in November 2010. In finalising the decision, the Court started the clock ticking on the six month timescale within which the UK Government is required to bring forward legislative changes intended to amend the law in this area so that it is compliant with the ECtHR. As such, the UK Government now have until October 2011 to address the issues that successive governments have been avoiding since the decision of the ECtHR in Hirst v United Kingdom in 2005.

It was in light of the lengthy delay in such steps being taken that the six months timescale was imposed by the Court in its decision issued in November 2010. Whilst further referring to that delay, and to the consequences of it, in terms of follow-up applications, the Court noted that it "is anxious to encourage the speediest and most effective resolution of the situation in a manner which complies with the Convention's guarantees". As such, the Court considered whether it was now necessary for it to take a more proactive role in ensuring that the judgment is executed, by providing guidance to the Government as to what is required in terms of legislative changes. However, in recalling the Grand Chamber's decision in the case of Hirst, the Court recognised that there are a number of possible ways in which an electoral system can be organised and that the Court's "role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight."

As such, the Court refrained from specifying what should form the content of future legislative proposals. However, it identified that such legislative proposals will be examined in due course by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the execution of the Court's judgments, including the Hirst judgment. The Court further noted that it "may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention". So whilst the Court does not intend to tell the UK Government how to revise the UK law in this area at this stage, it has left open the possibility of guidance at some later date if any proposals put forward by the Government fail to be Convention compliant.

In the meantime, however, the ECtHR drew a line under applications raising complaints of this nature. The Court stated that it considers it appropriate to "discontinue its examination" of such applications on this issue registered prior to the date of delivery of the judgment in Greens and M.T. v United Kingdom, pending compliance by the UK Government, and that it is also appropriate to "suspend the treatment" of any future applications or those not yet registered. However, the Court caveated this position as being without prejudice to any decision to recommence the treatment of these cases in the event of any non-compliance or any other events that made such a decision necessary.

This latest development in addressing the issue of the blanket ban preventing prisoners from exercising their right to vote has placed additional pressure on the UK Government to take action. However, only time will tell if the deadline imposed by the Court will be enough to encourage the Government to take steps which they, and those before them, have been putting off for over 5 years.