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Prisoners’ voting rights: a success story for the enforceability of the ECHR?

By Emi­ly MacKen­zie, NYU School of Law, (LL.M Can­di­date, 2011)

The last week has seen a tense dis­course in polit­i­cal and legal cir­cles in the UK cen­ter­ing on pris­on­ers’ vot­ing rights. This dis­cus­sion in some sense rep­re­sents the cul­mi­na­tion of five years of debate about the enforce­abil­i­ty of judg­ments made by the Euro­pean Court of Human Rights (ECtHR). In March 2004 the ECtHR held unan­i­mous­ly in Hirst v UK that the UK’s blan­ket ban on pris­on­ers vot­ing vio­lat­ed Arti­cle 3 Pro­to­col 1 of the Euro­pean Con­ven­tion on Human Rights (ECHR). Despite the rejec­tion of the UK’s appeal to the Grand Cham­ber, and the oblig­a­tion under Arti­cle 46 ECHR to enforce Stras­bourg judg­ments, the gov­ern­ment has to date failed to enact legal reform to imple­ment this deci­sion. Whilst there has been an ongo­ing con­sul­ta­tion, it is not over­ly cyn­i­cal to describe the process as mere­ly ‘going through the motions.’ The unex­plained delays, refusal to enter­tain the option of allow­ing all pris­on­ers to vote, and the government’s con­sis­tent expres­sion of its dis­agree­ment with the rul­ing all attest to this con­clu­sion.

Repeat­ed crit­i­cisms by the Coun­cil of Europe came to a head when the gov­ern­ment failed to act on any of the pro­pos­als in time to allow pris­on­ers to vote in the June 2010 elec­tion.  Last week, how­ev­er, UK news­pa­pers report­ed that the new coali­tion gov­ern­ment is final­ly going to imple­ment the judg­ment. (See cov­er­age by The Guardian here.)  The exact pro­gram and timescale of reform remain unclear, but it seems to be gen­er­al­ly accept­ed that a change is in the off­ing. The gov­ern­men­tal atti­tude remains, how­ev­er, that such reform is some­thing imposed on the UK by Europe, that it is not some­thing that the gov­ern­ment wants, and that they will apply it as restric­tive­ly as pos­si­ble. In light of this con­tin­ued ret­i­cence, one may ask: why after five years of stalling is the gov­ern­ment final­ly giv­ing in?

An easy answer is that the new coali­tion wants to tidy up loose ends left by the pre­vi­ous gov­ern­ment. The media also spec­u­lates that the Lib­er­al Democ­rats are more sym­pa­thet­ic to pris­on­er vot­ing, thus it may be their influ­ence in gov­ern­ment that has been a cat­a­lyst for the change. (See, e.g., cov­er­age by The Inde­pen­dent here.)

How­ev­er, the real impe­tus seems to be the threat of legal and polit­i­cal action. First­ly, the abil­i­ty of the ECHR organs to apply pres­sure to the UK has dras­ti­cal­ly increased with the long-await­ed com­ing into force of Pro­to­col 14 in June this year. Under the pre­vi­ous sys­tem the Com­mit­tee of Min­is­ters of the Coun­cil of Europe had the pow­er to ‘super­vise’ the exe­cu­tion of judg­ments of the ECtHR. This regime was con­sid­ered to lack teeth, ulti­mate­ly rely­ing on good will and the pow­er of shame. How­ev­er, under the new Pro­to­col, if the Com­mit­tee con­sid­ers that a High Con­tract­ing Par­ty is refus­ing to imple­ment a deci­sion it can refer the ques­tion to the Court, which will make a rul­ing on whether or not the state is in breach of its duty to enforce judg­ments. If the Court finds a vio­la­tion, it will refer the mat­ter back to the Com­mit­tee, which can then impose sanc­tions. The pre­cise scope of the sanc­tion regime remains unclear, but it could in the­o­ry include sus­pen­sion from the Coun­cil of Europe. The Com­mit­tee is set to reex­am­ine the fol­low-up to the Hirst case in its Novem­ber-Decem­ber ses­sion this year. The government’s recent capit­u­la­tion may well arise out of an unwill­ing­ness to test out the sharp­ness of the Committee’s new teeth.

Sec­ond­ly, the prospect of domes­tic com­pen­sa­tion claims is loom­ing. The UK Human Rights Blog report­ed that Lord Pan­nick QC of Black­stone Cham­bers com­ment­ed pri­or to the 2010 elec­tion that each pris­on­er denied the vote might be enti­tled to £750 com­pen­sa­tion (the amount peo­ple wrong­ly denied the vote usu­al­ly receive) and that law firms are tak­ing on claims, which could lead in the­o­ry to tens of thou­sands of oth­ers being brought ( The gov­ern­ment thus faces poten­tial pay-outs which, in the cur­rent eco­nom­ic cli­mate, would engen­der out­rage amidst a pub­lic that is already marked­ly anti-pris­on­ers’ rights.

Pre­dictably, the reac­tion of many has been that the UK should have its own Bill of Rights, and not be sub­ject to the ‘excess­es’ of the ECtHR. Whilst this may be a pol­i­cy that the Con­ser­v­a­tive Par­ty wish­es to pur­sue in the future, the Hirst saga con­tains some inter­est­ing and poten­tial­ly even con­fi­dence-inspir­ing lessons on the rela­tion­ship between Stras­bourg case law and domes­tic pol­i­tics. The UK gov­ern­ment has been forced by polit­i­cal pres­sure to pay heed to the ECHR’s vision of demo­c­ra­t­ic rights. This demon­strates the impor­tant role of a region­al human rights instru­ment as a mech­a­nism of ‘lev­el­ing-up.’ Indeed the UK is notably out of step with the rest of Europe. It may have to be dragged into line kick­ing and scream­ing, but the impor­tant point is that it would appear that it will be dragged into line.

The polit­i­cal and pub­lic antipa­thy toward the reforms may ini­tial­ly be high, but where law acts as pro­gres­sive reformer, pub­lic atti­tude can fol­low. It seems like­ly that the reforms will not entire­ly embrace the ECtHR’s vision and will be as cur­tailed as pos­si­ble; yet the abil­i­ty of the UK gov­ern­ment to remain restric­tive has been pro­found­ly lim­it­ed by the recent judg­ment in Frodl v Aus­tria, in which the ECtHR held that any restric­tion on vot­ing rights must be pro­por­tion­ate and could only be jus­ti­fied where there is a ‘direct link’ between the con­vic­tion and dis­en­fran­chise­ment, such as where the pris­on­er tried to under­mine demo­c­ra­t­ic foun­da­tions. There­fore, it would seem that despite the government’s cur­rent assur­ances that not all pris­on­ers will get the vote, they have no option but to engage in whole­sale reform of some sort. That it was the sys­tem of mon­e­tary reme­dies and the enforce­ment mech­a­nisms of the Coun­cil of Europe that trig­gered this change should go some way to assuag­ing the crit­i­cisms often made of the ECHR, and inter­na­tion­al human rights courts in gen­er­al, that their weak­ness is a lack of legal enforce­ment. It may have been a long time com­ing, but a vote for pris­on­ers is on the hori­zon in the UK, brought about by both the ECHR’s indi­rect polit­i­cal means of enforce­ment via the threat of sanc­tions, and its legal means of enforce­ment via com­pen­sa­tion claims.

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