The prisoner voting saga has become so complex and convoluted that I thought a quick summary of where we are at could be timely. At the risk of oversimplification this post attempts this. It also reports upon the background to and the significance of the recent Committee of Ministers’ decision with respect to the UK’s continued failure to implement Hirst v UK (and ensuing case law). (At the risk of a shameless plug, for a detailed account of the prisoner voting saga, the surrounding Strasbourg case law, how the government of the day and then the Court have reacted, see my article in Human Rights Law Review – here).
In what follows, I will (1) provide an overview of the initial UK stance against prisoner voting, then (2) address (again in overview) how the matter has been the subject of detailed consideration by a Parliamentary Committee in the UK, concluded with a Report which also drew attention to (3) the bigger issues at stake, i.e. the UK’s relationship with Strasbourg. In the final section (4), I will report on the Committee of Ministers’ recent decision as noted above. With this background post in place, I will post again on this matter in a week or so.
(1) Phase one: ‘no’ to prisoner voting (2005-2012)
It was in 2005 that, in a somewhat unclear and not uncontroversial judgment, Strasbourg, sitting as a Grand Chamber established that the UK’s blanket ban on convicted prisoners voting breached Article 3 of Protocol 1 to the ECHR (Hirst v UK). Next week, in fact, will see the tenth anniversary of the Grand Chamber ruling in Hirst.
The signals coming from the (Coalition) government in late 2010 (see Hansard: 20 Dec 2010 : Column 150WS, here) were, in fact, that the law would be changed to meet Hirst, even though this would have apparently made PM Cameron ‘physically ill’. We will never know if the announcement as to an intention to change the law was genuine, or part of a bigger political game. In February 2011, however, in a Backbench Business debate, MPs voted for a motion that amounted, in practice, to their signalling that they would refuse to implement the Hirst v UK [GC] ruling on prisoner voting (of six years earlier ).
Interestingly Dominic Raab, then a backbench MP (since May 2015 he has been Parliamentary Under Secretary of State at the Ministry of Justice) concluded the Backbench Business debate just referred to (here: scroll down to 5.37pm), arguing against the implementation of the Hirst judgment (as it was then understood), which he regarded as an abuse of power of the Court’s part. As he put it to MPs:
The worst that can happen is that we remain on a very long list of unenforced judgments to be reviewed by the Committee of Ministers-there are about 800 such judgments at the moment. There is no risk of a fine and no power to enforce compensation, and absolutely no chance of being kicked out of the Council of Europe.
He went on to add:
It is time that we drew a line in the sand and sent this very clear message back: this House will decide whether prisoners get the vote, and this House makes the laws of the land, because this House is accountable to the British people.
The February 2011 vote (in effect, on non-implementation and requesting that the matter be put back to Strasbourg) was carried by a very large majority. It did not bind the UK government, but appeared a deliberate attempt to put pressure on Strasbourg (by MPs) – plus it gave the UK government a basis (not necessarily a legally valid one) to go back to Strasbourg for it to seek a reconsideration of the law underpinning Hirst, even though that was a final Grand Chamber ruling.
Glossing over some aspects of the saga, it transpired that, in late 2012, during the UK’s chairmanship of the Council of Europe, and a few months before the Brighton Declaration, the law related to the Hirst case was, in effect, reargued before the Grand Chamber at Strasbourg by the UK government, intervening in an Italian case on prisoner voting. The Court delivered a Grand Chamber ruling in this Italian judgment (Scoppola v Italy No 3) which was regarded by many as an attempt at appeasement on Strasbourg’s part (it confirmed Hirst, but gave it a narrow reading; one that sill required some law reform in the UK, but not much).
After this, and some anti-Strasbourg/ pro-Parliament posturing on the UK government’s part, a Draft Bill was published for consultation. A Parliamentary Committee undertook an in-depth examination of the proposals this Bill envisaged (one such proposal being to pass new legislation in defiance of Strasbourg, i.e. confirming the blanket ban), doing so over many months, interviewing many witnesses and receiving many submissions in the process. To some surprise the Committee agreed that the law should be changed.
(2) Yes to some prisoner voting? (late 2013)
In its Report of December 2013, the Parliamentary Committee drew the following conclusions on what it referred to as ‘points of basic principle’ (on voting and the right of prisoners) and in the hope that it would ‘inform the continuing debate in Parliament and society’ (this is from the Executive Summary of the Report):
In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.
The Committee recommended that a Bill should be brought forward at the start of the 2014-15 session of Parliament. It proposed that there should be no disenfranchisement for prisoners serving sentences of 12 months or less, and that, for other prisoners, they should be entitled to apply, 6 months before their scheduled release date, to be registered to vote.
(3) The bigger picture
By the time the Committee had taken up its examination of the proposed law reform it was already pretty clear that the real issue was not really about whether some (note the limited basis for reform proposed by the Committee) prisoners could vote, but the UK’s relationship with Strasbourg. Thus the Committee also made these comments (this is from the Executive Summary):
Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.
In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.
And the relevant part of the Executive Summary continued:
We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.
We should note that the Minutes of the Committee indicate that it had been divided when it came to the crucial question of whether, in the view of the Committee, the UK should comply with Hirst. A minority would have formulated the Report such that it would have said that it should be left to Parliament to decide the prisoner voting issue (this was a difference of opinion as to the tone of the Report and how to address the Parliament-Strasbourg relationship. For the avoidance of doubt, the matter still is up to Parliament, despite what the Committee says, since the relevant legislation cannot be amended without its consent).
It is also worth adding that, with respect to broader UK-Strasbourg relations, and the role of Parliament, the Commitee’s Report state:
We note the recent and continuing reform of the Court, and, while it falls outside the scope of our inquiry, we also recognise the need for further reform of the Court and in particular of its relationship to democratically elected national legislatures…
As to Strasbourg’s ‘relationship to democratically elected national legislatures’, this has become the subject of considerable academic focus in recent years. The messages emanating from Strasbourg itself, and as articulated in certain public lectures in particular, is that the Court is now more conscious (and accommodating) than ever as regards its relationship with national Parliaments. On this, see in particular Judge Spano’s extra-judicial lectures and contributions, as with the analysis which is reported by UKHumanRightsblog here, and before that here (the full text of an earlier lecture may be found here)
(4) Back before the Committee of Ministers
Although the Parliamentary Committee on the prisoner voting issue reported in December 2013, no legislative proposals had been put to MPs by the government prior to the May 2015 General Election – indeed, we still await news of the next steps the UK government intends to take here. The Committee of Ministers tactfully avoided considering this issue prior to that election, but indicated that it would return to this matter in September 2015. In the meantime, the Conservatives’ election manifesto boasted that ‘[w]e have stopped prisoners from having the vote’ (pg 60).
And so it was that last week Dominic Raab, acting now as Parliamentary Under Secretary of State at the Ministry of Justice, took the unusual step of appearing in person before the Committee of Ministers when it considered the implementation of the Hirst (and subsequent cases) judgment last week. The outcome of that meeting was the Committee of Ministers’ Decision, which is commented upon here, and the text of which may be found here.
In a decision of around 200 words, the Committee of Ministers:
expressed their appreciation for the presence of the Minister for Human Rights and the assurances presented of the United Kingdom’s support for the European Convention on Human Rights’;
reiterated [the Committee’s] serious concern about the on-going delay in the introduction of a Bill to Parliament (as recommended by the Parliamentary Committee in December 2013);
And the Committee:
expressed profound regret that, despite their repeated calls, the blanket ban on the right of convicted prisoners in custody to vote remains in place
reiterated that concrete information is yet to be presented to the Committee on how the United Kingdom intends to abide by the judgment;
The Committee then called upon:
… the United Kingdom authorities to introduce a Bill to Parliament as recommended by the Parliamentary Committee without further delay, and to inform them as soon as this has been done;
It said it would
resume consideration of these cases at their 1243rd meeting (December 2015) (DH) and, in the event that no Bill has been introduced to Parliament in the meantime, instructed the Secretariat to prepare a draft interim resolution to be distributed with the revised draft order of business.
So, the clock is now ticking away for the December 2015 meeting of the Committee of Ministers, when it will return to this issue.
I will return to this topic with some broader comments and reflections in a few days’ time.