Issue 52 February 2011 - Human Rights Stop Press: Prisoner voting

 

The Strasbourg Court has just made a ruling on the ongoing failure of the UK Government to bring forward legislation tackling the issue of the inability of prisoners to vote. The case was brought by two prisoners at HMP Peterhead. It is a rare example of the Court imposing a time-limit on a Member State to bring about steps to implement an earlier decision of the Court, here the Grand Chamber decision in Hirst v United Kingdom (No.2) (App. No.74025/01), delivered on October 6, 2005, which had held that the blanket ban on voting breached art.3 of Protocol No.1. In the important decision of November 23, 2010, Greens and MT v United Kingdom (App. Nos 60041/08 and 60054/08), the Court held, unanimously, that there had been a violation of art.3 of Protocol No.1 (right to free elections) and no violation of art.13 (right to an effective remedy).

In Greens and MT v United Kingdom, applying its pilot judgment procedure under art.46, the Court has given the UK Government six months from the date when Greens and MT becomes final to introduce legislative proposals to bring the disputed law in line with the Convention.

The Government was further required to enact the relevant legislation within any time frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the execution of the Court’s judgments.

The Court has also decided that it will not examine any comparable cases pending new legislation and proposes to strike out all such registered cases once legislation has been introduced. The applicants are serving prisoners at HMP Peterhead. They argued that, following the Hirst v United Kingdom (No.2) judgment (among other things), that the Electoral Registration Officer was obliged to add their names to the electoral register. Section 3 of the Representation of the People Act 1983 imposes a blanket restriction on all convicted prisoners in detention irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. The blanket restriction introduced by s.3 of the 1983 Act was extended to elections to the European Parliament by s.8 of the European Parliamentary Elections Act 2002. The Court noted that the applicants had been prevented from voting in the June 2009 European elections and the May 2010 general election as a result of their status as convicted prisoners in detention. Section 3 of the 1983 Act had not been amended since Hirst. As a result, the applicants were ineligible to vote in the May 2010 general election. As a result of s.8 of the 2002 Act, the applicants were also ineligible to vote in the June 2009 European elections. The Court therefore concluded that there had been a violation of art.3 of Protocol No.1 for both applicants. The Court recalled that art.13 did not guarantee a remedy allowing the national laws (in the applicants’ cases s.3 of the 1983 Act and s.8 of the 2002 Act) of a State which had ratified the European Convention on Human Rights to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms. There had, therefore, been no violation of art.13. As for the important issue of just satisfaction the Court found that, “it was a cause for regret and concern” that, in the five years which had passed since the Hirst judgment, no amending measures had been brought forward by the Government. However, the Court did not consider that aggravated or punitive damages were appropriate in the applicants’ cases.

The Court noted the recent decision of the Committee of Ministers, which made reference to the fact that the new UK Government was “actively considering the best way of implementing the judgment” in Hirst. While the Court accepted that the continuing prohibition on voting might be frustrating for prisoners who could reasonably expect potentially to benefit from a change in the law, it nonetheless concluded that the finding of a violation, taken together with the Court’s directions under art.46, constituted sufficient just satisfaction in the applicants’ cases.

The Court held that the United Kingdom was to pay the applicants €5,000 in respect of costs and expenses.

The award was limited to the proceedings before the European Court of Human Rights and reflected the fact that extensive written submissions were lodged. In any future cases the Court noted that it would be likely to consider that legal costs were not reasonably and necessarily incurred and therefore make no award for costs under art.41.

The Court decided to apply its pilot judgment procedure to the case, under art.46, given the UK’s lengthy delay in implementing the decision in Hirst and the significant number of repetitive applications received by the Court shortly before, and in the six months following, the May 2010 general election.

It provided for specific measures. The Court emphasised that the finding of a violation of art.3 of Protocol No.1 in the applicants’ cases was the direct result of the failure to comply with the Hirst judgment.

One of the fundamental implications of the pilot judgment procedure was that the Court’s assessment of the situation complained of in a “pilot” case necessarily extended beyond the sole interests of the individual applicant/s and required it to examine that case from the perspective of general measures that needed to be taken in the interest of other people who might be affected. As the Court had already indicated, the prevailing situation had given rise to the lodging of numerous subsequent well-founded applications.

The Court had received approximately 2,500 applications in which a similar complaint had been made, around 1,500 of which had been registered and were awaiting a decision. The number continued to grow, and with each relevant election which passed without amended legislation, there was the potential for numerous new cases to be lodged. According to the UK Equality and Human Rights Commission, there were approximately 70,000 serving prisoners in the United Kingdom at any one time, all of whom were potential applicants. The failure of the United Kingdom to introduce the legislative proposals in question was not only an aggravating factor as regards the State’s responsibility under the Convention for an existing or past state of affairs, but also represented a threat to the future effectiveness of the Convention system.

The Court recalled that, in Hirst, the Grand Chamber left to the discretion of the United Kingdom the decision as to how precisely to secure the right to vote guaranteed by the Convention. Hirst was currently under the supervision of the Committee of Ministers. It was not disputed by the Government that general measures at national level were needed to ensure the proper execution of the Hirst judgment. It was also clear that legislative change was required to bring UK electoral law in line with the Convention. Given the lengthy delay which had already occurred and the results of that delay, the Court, like the Committee of Ministers, was anxious to encourage the quickest and most effective solution to the problem, in compliance with the Convention.

The Court considered that a wide range of policy alternatives were available to the UK Government which, following appropriate consultation, should, in the first instance, decide how to achieve compliance with art.3 of Protocol No.1 when introducing legislative proposals. Such proposals would then be examined by the Committee of Ministers.

However, while the Court did not consider it appropriate to specify the content of future legislative proposals, the lengthy delay to date had demonstrated the need for a timetable. Accordingly, the Court concluded that the United Kingdom had to introduce legislative proposals to amend s.3 of the 1983 Act and, if appropriate, s.8 of the 2002 Act, within six months of the judgment becoming final, with a view to the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst according to any time-scale determined by the Committee of Ministers. Given the findings in this judgment, and in Hirst, it was clear that every comparable case pending before the Court which satisfied the admissibility criteria would give rise to a violation of art.3 of Protocol No.1. It was therefore to be regretted that the Government had not acted more quickly to rectify the situation before the European elections in 2009 and the general election in 2010.  Further, while it was to be hoped that new legislation would be in place as soon as practically possible, it was far from apparent that an appropriate solution would be in place prior to the Scottish elections, scheduled for May 2011; and the likely consequence of that failure would be a wave of new applications to the Court.

The Court noted that no individual examination of comparable cases was required in order to assess appropriate redress and no financial compensation was payable. The only relevant remedy was a change in the law, which, while no doubt satisfying all those who had been or might be affected by the current blanket ban, could not undo past violations of the Convention concerning particular individuals. In the light of that and the six-month deadline fixed for introducing legislative proposals, the Court considered that the continued examination of each comparable case was no longer justified.

An amendment to the electoral law to achieve compliance with Hirst would also result in compliance with the judgment and any future judgment in any comparable case. In those circumstances, the Court did not think anything was to be gained, or that justice would be best served, by the repetition of its findings in a lengthy series of similar cases, which would be a significant drain on its resources and add to its already considerable caseload. In particular, such an exercise would not contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention.

The Court accordingly considered it appropriate to discontinue its examination of all registered applications raising similar complaints pending compliance by the United Kingdom with the instruction to introduce legislative proposals. In the event of such compliance, the Court proposed to strike out all such registered cases, without prejudice to its power to restore them to the list should the United Kingdom fail to comply. The Court also considered it appropriate to suspend the treatment of such applications which had not yet been registered, as well as future applications, without prejudice to any decision to recommence treatment of those cases if necessary.