On 10th February 2015, the European Court of Human Rights (ECtHR) delivered yet another judgment against the UK’s ban on prisoner voting. McHugh[1] comes three months before the UK general elections on 7th May 2015. The latest judgment is conspicuously brief and restates what has been proclaimed in numerous previous cases. Yet, it serves as a reminder of the precarious relationship between the ECtHR and the UK. This post revisits the landmark decisions against the UK on the issue of prisoners’ voting rights; examines the current position adopted by the UK government on this issue; and looks ahead to the uncertainty of prisoners’ voting rights under this government and the next.

McHugh originated in 1,015 applications against the UK lodged by prisoners. They alleged that section 3 (1) of the Representation of People Act 1983 (RPA 1983), that prevents convicted prisoners from voting in parliamentary and local elections, violated their rights under Article 3, Protocol 1 ECHR. In particular, they claimed that they were prevented from voting in a number of elections including: the European Parliamentary Elections; the UK Parliamentary elections; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly.[2]

The Court notably refrains from delving into detailed analysis of the merits and simply states that since the impugned legislation remains unchanged, it cannot but conclude, once again, that there has been a violation of Article 3 Protocol No.1.[3] The brevity of this judgment can be read as evidence of the Court’s frustration with the UK government’s continuous disregard of its judgments on the issue.

The Court adjudicated on the UK prisoners’ voting ban for the first time in Hirst (No.2)[4] where, while acknowledging that States have a wide margin of appreciation when it comes to organising and running their electoral systems,[5] it stated that the conditions imposed by States ‘…must not thwart the free expression of the people in the choice of the legislature…’[6] While the Court accepted the UK’s claim that the ban pursued the legitimate aim of preventing crime, by sanctioning the conduct of convicted prisoners and enhancing civil responsibility and respect for the rule of law,[7] it held that the measure was not proportionate to this aim. Specifically:

‘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… and as being incompatible with Article 3 of Protocol No. 1.’[8]

This position was restated five years later in Greens and MT where the Court found a violation of Article 3 Protocol 1 as the UK had failed to amend its electoral law.[9] What is noteworthy in this case is that the ECtHR went a step further and stated that a timetable for introducing the amendments to the electoral law was required. Accordingly, it imposed a six-month deadline for the UK.[10]

The Court reiterated its declaration of the illegality of the absolute and indiscriminate ban on prisoner voting in Scoppola (No.3).[11] The Court held that the Italian ban did not have the general, automatic and indiscriminate character of the UK ban as:

‘…there is no disenfranchisement in connection with minor offences or those which, although more serious in principle, do not attract sentences of three years’ imprisonment or more, regard being had to the circumstances in which they were committed and to the offender’s personal situation…’[12]

Although proclamations by the ECtHR that the UK electoral law breaches Article 3 Protocol 1 have been made loud and clear in the past 10 years, an examination of the actual steps taken so far by the UK casts aspersions on the government’s intentions to conform and amend its legislation.

While it may be hard to surpass the Prime Minister’s comment in 2011 that the thought of giving prisoners the right to vote made him ‘physically ill’,[13] one must examine any positive steps taken by the government so far towards amending its electoral law. Following Hirst, two public consultations on prisoners’ voting rights were held, yet no amending legislation was introduced.[14] Prisoners were accordingly prevented from voting in a number of elections, including the 2010 general elections. Additionally, the House of Commons overwhelmingly adopted a cross-party motion supporting the preservation of the current ban on prisoner voting.[15]

Following further pressure by the Court and the Committee of Ministers (CoM), on 22nd November 2012 the UK published the Voting Eligibility (Prisoners) Draft Bill. This bill set out three options for prisoners’ voting, namely: a ban for prisoners sentenced to four years or more; a ban for those sentenced to more than six months; and the retention of the current ban applying to all convicted prisoners.[16] While the two first options can be seen, at least in theory, as amending the absolute ban on prisoner voting, the last option can be interpreted as the government’s way of asserting its sovereignty and its independence by explicitly legislating contrary to ECtHR jurisprudence.[17] As noted by the Joint Select Committee appointed to conduct pre-legislative scrutiny of the Bill, the option of retaining the current ban, ‘would not only undermine the international 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 may draw on such actions as setting a precedent…’[18]

Despite the drafting of this Bill, the UK has yet to take any steps towards its implementation. This inactivity emphasises the continued conflict in the relationship between the ECtHR and the UK. The relationship between the two continues to be fractious, reflected not only in the case law of prisoner voting, but also in myriad other areas.[19] Yet, what marks the prisoner-voting situation as separate from other conflicts between the UK and the ECtHR is the confrontational stance adopted by them both. Here, the UK has pugnaciously defied the Court by proposing a version of the Bill that retains the current indiscriminate ban on prisoner voting, moving beyond its usual ‘declaration of incompatibility’.[20] At the same time, the Court has chosen to adopt a more proactive stance, and rather than leaving it to the CoM alone to supervise the execution of these judgments, set, for the first time in relation to the UK, a time-limit within which the UK had to introduce amendments to its electoral law. Therefore, the image broadcasted is one of brinkmanship, with neither the Court, nor the UK backing down.

The Court has been criticised as overstepping its role in these cases. According to the dissenting judges in Hirst, ‘the Court is not a legislator and should be careful not to assume legislative functions.’[21] The UK government shared this view, asserting that the decision as to whether legislation should be passed allowing prisoners to vote is one for Parliament to take and not the ECtHR.[22]

An examination of both Hirst and Greens and M.T. contradicts this view that the Court has overstepped its role. While it determined that the current ban is absolute and indiscriminate, violating Article 3 Protocol 1, it explicitly acknowledged the wide margin of appreciation afforded to States under this right; noting that it is left to the national authorities to decide how to comply with these obligations. Importantly, in Greens and M.T., even though it set the deadline of six months for the UK, it explicitly recognised that it does not have the power to direct the State as to the specific content of this legislative reform.

The Court has therefore simply upheld its role of safeguarding human rights, reiterating the principle that blanket bans and restrictions on human rights are not proportionate. It has not tried to give the right to vote to all prisoners; it merely stated that what violates Article 3 Protocol 1 is the absolute and indiscriminate nature of section 3(1) RPA 1983. Importantly, even if one opines that the Court’s judgments went too far, this alone does not excuse the UK’s disregard of them, especially not such a brazen defiance. As Letsas noted, ‘the United Kingdom cannot pick and choose which judgments of the Court to comply with, without undermining the long and painful process of establishing a Europe of rights, democracy and the Rule of Law.’[23]

Bearing in mind the current situation, the question remains: where does the UK’s inertia on the issue of prisoner voting leave prisoners who wish to vote in the coming elections? The government’s stance is clear, stating that further discussion of the issue is deferred until September 2015, four months after the elections. Yet, what becomes apparent is that proponents of an amendment to the current indiscriminate ban on voting will struggle to find a supportive party to break the cycle of disobedience and comply with the Court’s judgments. The Conservatives have declared that they are prepared to leave the ECHR if Strasbourg does not accept their demand of making the Court’s judgments merely advisory.[24] At the same time, while the Labour party has pledged to keep the country in the ECHR,[25] when in power, failed to take any action to amend the electoral law and subsequently voted in favour of retaining the current ban.[26] Therefore, whether the issue will indeed be addressed in September remains to be seen.

[1] McHugh and Others v United Kingdom App no 51987/08 and 1,014 others (ECtHR, 10 February 2010).

[2] Ibid., para 5.

[3] Ibid., para 11.

[4] Hirst v United Kingdom (No.2) App no 74025/01 (ECtHR, 6 October 2005).

[5] Ibid., para 61.

[6] Ibid., para 62.

[7] Ibid., para 75.

[8] Ibid., para 82.

[9] Greens and M.T. v United Kingdom App nos 60041/08 and 60054/08 (ECtHR, 23 November 2010)

[10] Ibid., para 115.

[11] Scoppola v Italy (No.3) App no 126/05 (ECtHR, 22 May 2012).

[12] Ibid., para 108.

[13] Guardian, ‘UK may be forced to give prisoners the vote in time for May elections’, retrieved 20/3/15 <http://www.theguardian.com/society/2011/feb/01/prisoners-vote-may-elections-compensation-claims&gt;

[14] Alexander Horne and Isobel White, ‘Prisoners’ Voting Rights’ House of Commons Library, SN/PC/01764, pp13-17, retrieved 18/3/15 < http://www.parliament.uk/business/publications/research/briefing-papers/SN01764/prisoners-voting-rights>

[15] HC Deb 10 February 2011 c584.

[16] The Voting Eligibility (Prisoners) Draft Bill, Cm 8499, November 2012.

[17] Decision of the Committee of Ministers, 1157th Meeting (DH), 4-6 December 2012.

[18] Draft Voting Eligibility (Prisoners) Bill, Session 2013–14, 18 December 2013 (HL Paper 103; HC 924) para 113.

[19] See for example the case of Othman (Abu Qatada) v United Kingdom ECHR 2012 dealing with the deportation of suspected terrorists. See also the case of Vinter and Others v United Kingdom dealing with Article 3 and prisoners’ right to hope.

[20] Human Rights Act 1998, section 4.

[21] Hirst v United Kingdom (No.2), Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 6.

[22] HC Deb 10 February 2011, c493.

[23] George Letsas, ‘ In defence of the European Court of Human Rights’ retrieved 19/3/15 <https://www.ucl.ac.uk/human-rights/news/documents/prisoners-vote.pdf>

[24] Protecting human rights in the UK: The Conservatives Proposals for changing Britain’s human rights laws, retrieved 20/3/15 <https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf>

[25] Labour List, ‘Miliband makes stirring defence of Human Rights Act’ 10 December 2014, retrieved 17/3/15 <http://labourlist.org/2014/12/miliband-makes-stirring-defence-of-human-rights-act/>

[26] HC Deb 10 February 2011 c584.