I’m agnostic about whether prisoners should be allowed to vote – I can see the rehabilitation argument, up to a point, but I understand the view that disfranchisement (as the legislation puts it) is part of punishment, too. So if government had decided to change things as part of its political or penal reform agenda, I’d have no problem. But it’s not like that of course. It has to change things because of the judgment of the European Court of Human Rights in Hirst v UK that UK law breaches Article 3 of Protocol 1 to the ECHR.
I’m amazed at the number of people, including many MPs in the Commons yesterday, and even a former Law Lord, who somehow seem to think we can go on resisting Hirst. We can’t. We have a clear legal obligation to comply with it.
In terms of practical risks, the real fear is not test cases in our courts – it’s lawful in domestic legal terms for the UK to maintain its prisoner voting ban, since section 3 of the Representation of the People Act 1983 is incompatible with human rights (odd and counter-intuitive, I know, but that really is how the Human Rights Act is designed to work). So no prisoner can get damages here. Though it is possible they could get low damages eventually in Strasbourg after their legal cases have failed here.
The real risk was that the UK might just be the first state hauled back before the court for non-compliance, under new “infraction” procedures that came in this year. Unlikely, since two thirds of signatory states to the ECHR would have had to vote to put the UK in the dock (many of whom themselves restrict prisoners from voting), but just to be the first possible “infractee” would have been daft for a country that rightly thinks it’s better at human rights than many others who have signed the ECHR.
So what exactly should the government do? Unfortunately it’s not just a matter, any more, of complying with Hirst – though we must do that. Since then there’s been another case, Frodl v Austria (not “Froidl”, as is being reported in various media – a Froidlian slip, perhaps?) in which the ECtHR has gone further, saying (para. 28)
Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings
and then seeming to narrow this yet further (para. 34):
Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.
This is breathtaking stuff. First, because the Court has gone way beyond its supervisory role, and has got into detailed policy-making for states, even though it claims in theory that (para. 23 of Frodl)
Contracting States must be allowed a wide margin of appreciation in this sphere since there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.
Secondly, though, it’s breathtaking because the Court claims to be relying on detailed criteria laid down in Hirst; but if you look back at the Hirst judgment you see that it does no such thing. Quite the opposite. In Hirst, the court says (paras. 83 and 84)
… as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention, the Court notes that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the State concerned to choose … the means to be used in its domestic legal order in order to discharge its obligation … In a case such as the present … the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1.
In Frodl, then, the ECtHR went rogue, stepping beyond its proper role, ignoring a key principle of restraint and even distorting the meaning of its own earlier judgment in order to justify going much further. Frodl really is a stinker of a judgment. If Strasbourg sticks by that line, then almost all prisoners in the UK will get the vote in time, no matter what compromise is cooked up now. But the government may hope Frodl is a freak outlier, and that a reform short of its requirements will survive challenge.
Because not all the judges in Strasbourg agree. In Hirst, the government lost on appeal to the Grand Chamber by a majority vote of 12 judges to 5. The dissenting majority (which included the then and current Presidents of the Court) said (paras. 5 and 6, dissenting opinion of Judges Wildhaber, Costa et al)
In our opinion this categorical finding is difficult to reconcile with the declared intention to adhere to the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system. In any event, the lack of precision in the wording of that Article and the sensitive political assessments involved call for caution. Unless restrictions impair the very essence of the right to vote or are arbitrary, national legislation on voting rights should be declared incompatible with Article 3 only if weighty reasons justify such a finding … [the majority] conclusion is in fact based on a “dynamic and evolutive” interpretation of Article 3 of Protocol No 1 … However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An “evolutive” or “dynamic” interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved. We fail to see that this is so in the present case.
Judge Costa, in his additional dissenting judgment (para. 9), criticised the majority which
on the one hand theoretically asserts a wide margin of appreciation for the States as to the conditions in which a subjective right (derived from judicial interpretation!) may be exercised, but goes on to hold that there has been a violation of that right, thereby depriving the State of all margin and all means of appreciation.
In Frodl, the Russian Judge Kovler admirably stood by his dissent. What made the Norwegian Judge Jebens change his mind, I can’t say. He ought to have explained his reasoning in a concurring judgment.
None of these criticisms changes the fact that Hirst has to be complied with, of course. The ECtHR needs watching, though. In my view it’s a good thing, and I support it. But it has a tendency sometimes to go rogue, oblivious of its subsidiary role, and to limit excessively the scope for national policymaking. There’s no better example than its recent decisions on prisoners and voting.