Equality and Human Rights Commission: Human Rights Review 2012

Equality and Human Rights Commission: Human Rights Review 2012

Article 3: Right to free elections

The High Contracting Parties 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.

Summary

Britain generally observes the right to free elections and the right to vote. However, the current electoral law which prohibits voting rights for prisoners is not compliant with Article 3 Protocol 1, as found by the Grand Chamber of the European Court of Human Rights. The British government has so far failed to comply with this judgment.

Article 3 Protocol 1 embodies two distinct individual rights: the right to stand for election and the right to vote in elections. Both imply the obligation on the state to ensure free expression of the opinion of the people in the choice of the legislature. The right to vote is of prime importance as it provides individuals with the ability to remove a government to which they object. However, despite the significance of this right, the European Court of Human Rights has held that the standards to be applied for establishing compliance with Article 3 Protocol 1 are not as strict as those which relate to the qualified rights in the main body of the Convention: for example, Articles 8 (the right to respect for private and family life, home and correspondence), 10 (the right to freedom of expression), and 11 (the right to freedom of assembly and association). In reaching a decision on compliance, the Court will concentrate on whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.

The rights guaranteed under Article 3 Protocol 1 are supported by the right to freedom of association under Article 11 and free expression under Article 10. It would be hard to stand for election, and to decide how to cast one’s vote, if political parties and gatherings were prohibited.

Article 3 Protocol 1: Right to free elections

The right to free elections and the right to vote, which are protected by this Protocol, seem commonplace today. Yet less than two centuries ago only a minority of British men could vote, while women were totally disenfranchised. The Representation of the People Act 1832 (the Great Reform Act) significantly extended the right to vote, but only to male householders meeting a property qualification. Between 1838 and 1859, the Chartist movement campaigned for universal male suffrage, which was gradually widened through amendments to the Act in 1867 and 1884. The campaign for votes for women, led by the suffragettes in the early 20th century, culminated in the Representation of the People Act of 1918 which enfranchised women over the age of 30 who met a property qualification. This act also removed the property qualification for men over 21. Universal suffrage for men and women over 21 was achieved in 1928 with the Representation of People (Equal Franchise) Act, and the voting age was lowered to 18 in 1969.

Therefore, by the time the Protocol was drafted in 1952, the UK already provided an adequate system of ‘free elections’. Nevertheless, Article 3 Protocol 1 still has a role to play when individuals or groups are denied the opportunity to exercise their right to vote.

Key issue

1. Exclusion of prisoners from eligibility to vote does not comply with Article 3 Protocol 1.

Historically, voting rights were dependent upon the ownership of property. Until 1870, any person convicted of treason or felony forfeited their property rights, which simultaneously excluded them from voting. Persons convicted of and imprisoned for misdemeanours or less serious crimes did not have their property forfeited and were therefore still able to vote, unless they were physically prevented by being in jail on the day of the election. This approach continued until the Forfeiture Act 1870, where people convicted of treason or felonies no longer forfeited their property, but nonetheless lost the right to vote if the duration of their sentence exceeded 12 months. In 1918, the Representation of the People Act extended this disenfranchisement by making all people in custody, prisons or asylums, ineligible to vote for the duration of their incarceration. The Representation of the People Act of 1969 and 1983 barred convicted and detained people from voting during their detention, as well as those unlawfully at large, and this remains in force today. Prisoners remanded in custody are not barred from voting.

The UK is not in step on this issue with many of the other countries in the Council of Europe. Of the 37 countries in the Council of Europe who responded to a survey on the matter, 14 have no restrictions on prisoners voting, while others only ban some sentenced prisoners. The UK is among a handful of countries that automatically disenfranchise sentenced prisoners, who currently number about 73,000 in England and Wales.

In 2001 the High Court rejected a challenge to the ban brought by John Hirst, a prisoner then serving a sentence for manslaughter.30 Later that year, Mr Hirst lodged an appeal with the European Court of Human Rights. He argued that the ban violated Article 3 Protocol 1 because it served no legitimate purpose, was not linked to the prevention of crime, undermined rehabilitation and civic responsibility, and was disproportionate because of its blanket nature. In March 2004 the Court found in his favour, agreeing that the ban contained in the 1983 Act violated the Protocol.

The government appealed to the Grand Chamber of the European Court of Human Rights, arguing that the judgment had failed to allow Britain a proper degree of discretion over how it dealt with the issue. It said:

‘Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country.’

Nevertheless, in October 2005 the Grand Chamber upheld the Court’s previous ruling, accepting the legitimate aims of the government, but maintaining that the bar was disproportionate. It underlined ‘that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty’, and described the relevant provision of the 1983 Act as ‘a blunt instrument’ which:

‘strips of their Convention right to vote a significant category of persons and … does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.’

The chamber’s 2005 decision in Hirst v. the United Kingdom reflects the principle that the human rights guaranteed under the Convention apply to everyone, even unpopular minorities. Offenders may be punished for their crimes with a prison sentence, which means a denial of their right to liberty. Article 5 (the right to liberty and security) of the Convention expressly permits imprisonment for crimes, while holding that such punishment is limited to loss of liberty. Prisoners are otherwise entitled to enjoy all the rights and freedoms that are not necessarily disrupted by imprisonment, including the right to vote. The chamber’s judgment recognized that treating the right to vote as a privilege to be removed for bad behaviour is a disproportionate interference with a fundamental right.

2. Progress by the British government is slow in complying with the European Court of Human Rights judgment Judgments by the European Court of Human Rights are essentially declaratory in nature, in that the Council of Europe cannot compel states to implement them. However, Article 46 of the Convention obliges states to comply with the judgments and the UK would be in breach of its Convention obligations if it ignored the Court’s decisions. In the past the UK has consistently complied when judgments have gone against it. However, following the chamber’s ruling in Hirst v. the United Kingdom in October 2005, the government did not announce any immediate change to the law allowing prisoners the right to vote. Instead, in December 2006 it began a two-stage consultation about options for change which concluded in September 2009. Yet so far there has been no formal response from the government.

In June 2009 the Council of Europe’s Committee of Ministers, which oversees the response of states to the court’s rulings, ‘expressed concern about the significant delay in implementing the action plan and recognised the pressing need to take concrete steps to implement the [Hirst] judgment.’

In March 2010 the cross-party parliamentary Joint Committee on Human Rights declared its ‘overriding disappointment … at the lack of progress’ on this matter and noted that the delay over the consultation ‘appears to show a lack of commitment on the part of the Government to propos[e] a solution for Parliament to consider’. It noted:

‘Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.’

20 December 2010, the government announced that it would bring forward legislation to allow offenders sentenced to less than four years in custody the right to vote in elections for parliament and the European parliament, unless the sentencing judge considered this inappropriate. Yet no such legislation has been introduced.

On 10 February 2011, the House of Commons held a non-binding backbench debate on the issue. The motion, which supported the continuation of the current ban, was agreed by a majority of 234 votes to 22,39 indicating that there is still significant cross-party resistance to the Hirst judgment.

The European Court of Human Rights has not sought to dictate how the government should change the law in order to achieve compliance with Article 3 Protocol 1. However, in November 2010 it imposed a six month deadline ‘to introduce legislative proposals to bring the disputed laws in line with the Convention’ following another claim brought by a prisoner for the right to vote. In March 2011 the government lodged an appeal against this decision, which was dismissed.

In September 2011, the government sought again to overturn the Court’s findings on prisoner voting, by intervening in a challenge brought against Italy by Scoppola, a convicted murderer.42 As a result of the intervention the Court has again extended the deadline for the UK’s compliance to six months after the date of the new judgment. The case was heard in November 2011 and the Attorney General attended the hearing, to put the UK’s views to the Court. He argued that it should be for parliament to decide the way forward on prisoner voting rights. The judgment is expected some time in 2012.

Subject to the outcome of Scoppola v. Italy, the UK is obliged to remedy its legal framework when the Court identifies an incompatibility with the Convention. But the Court does not dictate the form that the remedy takes, leaving that role to parliament. It can change the law in a way that is appropriate to domestic legal traditions, complies with the UK’s treaty obligations, and reflects the Court’s judgment. As of November 2011, the UK has yet to fulfil this obligation.

Comment: I have only published the section relating to prisoners votes.