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 (http://ukhumanrightsblog.com/2010/05/30/prisoner-voting-back-on-the-human-rights-agenda-this-week/). 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.