Prisoners’ votes, and judges going rogue

by Carl Gardner on November 3, 2010

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.

Don’t forget Charon QC interviewed me on all this last week. Listen here.

Play

{ 16 comments… read them below or add one }

1 Ben November 3, 2010 at 14:29

” 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”

Sorry? I must be reading that wrong. Let me try that again:

“it’s a good thing – But it has a tendency – to go rogue”

Erm … Seriously? Is this a typo or perhaps a “thinko”?

It may do the right thing sometimes, but it surely cannot be “a good thing” if it has a tendency to “go rogue”. That’s a basic requirement.

2 Carl Gardner November 3, 2010 at 14:37

Yes, seriously!

Far too many people either reject the Court as a wicked foreign imposition, with the idea that its judgments should never bind us; or defend anything it does and says uncritically on the basis that anything labelled “human rights” must be perfect.

I don’t see anything odd about saying it’s generally a good thing, but sometimes goes off the rails. Nuance is possible.

3 Andreas Moser November 3, 2010 at 15:56

The question of prisoners’ right to vote has mostly been discussed as a matter of human rights law and criminal law. I am much more interested in the political philosophy aspect:

The legislature allows the judiciary to remove voting rights of part of the public. The people concerned will be barred from voting and thus punishing the MPs who voted to strip them of a very fundamental right of a citzen. What stops the legislature to carry on and strip more and more groups that the majority of the House of Commons happens to distrust of their right to vote?
Sure, the next Parliament could change the law, but remember, those affected by the voting ban won’t have representatives there.
That’s a dangerous thing in my eyes.

On a lighter note, as a voter I am far less concerned by convicted criminals voting than by the equality between the vote of an uninformed pot-smoking 19 year old who is drunk on voting day with my vote, the decision for which I have reached after reading 3 newspapers for months before voting day and meeting all candidates in my constituency.

4 Carl Gardner November 3, 2010 at 16:11

In fact the legislation at the moment takes prisoners’ votes away automatically – judges aren’t involved.

Under your approach, isn’t it wrong that asylum seekers have no say in the law of asylum? Isn’t the logical consequence of your argument that new arrivals to the UK, and even visitors, get the vote on touchdown?

5 hatfield girl November 3, 2010 at 21:10

A dynamic or evolutive interpretation would call upon a dominant cultural mode if it is to behave in a quasi-legislative fashion (which may or may not be desirable) but cannot exist where there is great cultural diversity, with such diversity displaying considerable weight for each sub-culture. Europe is just such a set of diverse cultures, each weighing in forcefully.

A European court, of its very origins, should interpret closely, not indulge in practices that may be acceptable, even praiseworthy, in some democratic modes and unacceptable in others.

6 Anonymous November 3, 2010 at 21:53

Well, Austria tried to get the Frodl case referred to the Grand Chamber of the Strasbourg court but they declined to hear it – http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=875772&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
So Frodl is the last word so far as Strasbourg is concerned, at least until another UK case comes before the court. Perhaps the really interesting point is in how far the domestic courts might use the space given to them by section 2 of the Human Rights Act, which only requires them to “take into account” Strasbourg cases to distinguish between Hirst and Frodl. The leading case on that is the Supreme Court decision in Horncastle but that doesn’t deal with the specific circumstance here. Interesting to see what the Court of Appeal will do in the Chester case, which it heard today – http://www.bbc.co.uk/news/uk-politics-11687105

7 Anonymous November 3, 2010 at 22:29

Not sure if I have already posted this, the technology is clearly beyond me. The Strasbourg court has already declined a request to have Frodl heard by the Grand Chamber – http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=875772&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

So, Frodl is the last word as far as Strasbourg is concerned, at least until the court hears another case against the UK. The real mileage is in looking at how far section 2 of the Human Rights Act (which only requires the UK courts to take Strasbourg judgments into account) enables the domestic courts to decline to follow Frodl. The leading case on this is the Supreme Court case of Horncastle but that doesn’t really deal with this sort of situation.

Interesting to see if the Court of Appeal who were considering prisoner voting rights today – http://www.bbc.co.uk/news/uk-politics-11687105 – say anything about Frodl and its applicability in domestic law. Of course, Frodl isn’t binding as a matter of international law as it was a judgment against Austria.

8 Carl Gardner November 4, 2010 at 00:13

Thanks, Anon – I didn’t realise Austria had tried that. On most blogs, if a comment’s anonymous, it’s a fair bet it’s pretty rubbish quality. Not so here.

I wonder how far section 2 helps, though. Section 3 of the RPA 1983 simply has to be incompatible, doesn’t it? It’s hard to see how it can be read down even under what I call the “non-linguistic approach” laid down by the House of Lords in Ghaidan. So the current position is lawful, isn’t it? Of course Chester is arguing that it can be read down, isn’t he?

9 Anonymous November 4, 2010 at 00:22

Section 2 HRA isn’t the reading down provision – that’s section 3. Section 2 sets out how the ECHR rights are to be interpreted by the courts and doesn’t require the courts to adopt Strasbourg rulings as precedent, simply to take them into account. So, there is space for the UK courts not to follow Frodl if they think it isn’t right. But that’s quite contentious and should arguably only be done in limited circs.

10 Carl Gardner November 4, 2010 at 10:17

Yes, yes! But what I mean is, if the court takes any account at all of Hirst, then the provision on its face breaches the right to vote; the next question is, is it incompatible with the right, or can it be read compatibly under s3? Section 3 is very powerful, but I don’t see how these provisions can be read as making prisoners capable of voting. If that’s right, then it doesn’t matter whether you take account of Frodl, does it? The provisions are incompatible, and the voting ban remains lawful (in domestic law terms, not of course in international law level where our obligation is to change it).

That’s why I’m not sure it helps prisoners even if under s2 Frodl is given little or even no weight.

11 Anonymous November 4, 2010 at 15:30

No, the legislation can’t be read down and prisoners can’t be helped in this way. But, if the Government want to limit the number of prisoners who can vote, then arguably, they can be helped by section 2 if they can discount the very broad Frodl and follow Hirst, which gives a lot more room for manouevre. Frodl isn’t binding as a matter of international law because it’s a judgment against Austria not the UK. How far it affects whether any purported implementation of Hirst would be lawful depends on the view taken of Frodl by the courts under section 2 HRA.

12 Scott November 4, 2010 at 18:12

There has of course already been a British court declaring that the RPA s 3 is incompatible with the ECHR – but for some reason this has been ignored south of the border and in the political discourse in relation to this issue. Smith v Scott [2007] CSIH 9 http://www.scotcourts.gov.uk/opinions/2007CSIH9.html is an Inner House decision. Has there been an equivalent declaration of incompatibility south of the border? And given that this was more than 3 years ago I am astounded that the government failed to respond to the Court of Session declarator and cannot imagine that a similar order from an English court would be so disregarded.

13 Carl Gardner November 4, 2010 at 18:17

Not ignored by me, Scott! I mention it in the podcast interview I did for Charon QC recently.

14 Scott November 4, 2010 at 18:24

I need to go back to listen to that. That the issue has already been tested by senior appellate judges in the UK, the current legislative settlement found wanting, and the government failed to respond properly to explain why no action in relation to a court order should have been one of the issues the media picked up on this week (I would have thought). Sadly, it appears even the Scottish press and politicians are ignorant of the orders our judges make.

15 Stephen Morris November 5, 2010 at 23:34

As a direct beneficiary of a Strasbourg ruling (Gaskin v UK 1989), which allowed me access to the file compiled about me and my infancy and childhood in care, and hence to know and understand my origins, I am predisposed to support the Frodl judgement (as well as the Hirst one). Without this judgement, people in my position would have little or no right to understand why we were raised in care. Lord Denning and his pals saw to that in Gaskin v Liverpool County Council 1979 (Court of Appea).

Yes, perhaps the ECtHR is making law in the Hirst and Frodl cases, but don’t our own domestic judges and quasi-judiciary institutions (eg ICO) sometimes do the same? My experience and observations is that they do. Hence, I have no probelems with the ECtHR doing the same, particularly as its aims are benign (ie human rights and fundamental freedoms for all). The ends justify the means. The aims of our domestic legislature and judiciary do not always appear to me to be benign.

Perhaps we need to remember the rationale for the ECHR – it was drafted as a response to the Nazi atrocities and is intended to make sure similar events do not recur (“Never Again”). If I recall my history correctly, the first thing Hitler did when he achieved power was to deprive everyone of their vote. We should also remember that 100 years ago it was thought inconceivable that women should have voting rights. Nowadays, everyone accepts they should have the vote. In time to come, votes for prisoners will have followed the same path.

I suggest the ECtHR regards the right to vote as so fundamental to democracy that to deprive someone of this right should only be used very, very exceptionally, if at all. It seems that our legislature does not give it such value as do our friends in Strasbourg. Therefore, more power to the ECtHR!!!

16 Stephen Morris November 5, 2010 at 23:36

As a direct beneficiary of a Strasbourg ruling (Gaskin v UK 1989), which allowed me access to the file compiled about me and my infancy and childhood in care, and hence to know and understand my origins, I am predisposed to support the Frodl judgement (as well as the Hirst one). Without the Gaskin judgement, people in my position would have little or no right to understand why we were raised in care. Lord Denning and his pals saw to that in Gaskin v Liverpool County Council 1979 (Court of Appeal).

Yes, perhaps the ECtHR is making law in the Hirst and Frodl cases, but don’t our own domestic judges and quasi-judiciary institutions (eg ICO) sometimes do the same? My experience and observations is that they do. Hence, I have no probelems with the ECtHR doing the same, particularly as its aims are benign (ie human rights and fundamental freedoms for all). The ends justify the means. The aims of our domestic legislature and judiciary do not always appear to me to be benign.

Perhaps we need to remember the rationale for the ECHR – it was drafted as a response to the Nazi atrocities and is intended to make sure similar events do not recur (“Never Again”). If I recall my history correctly, the first thing Hitler did when he achieved power was to deprive everyone of their vote. We should also remember that 100 years ago it was thought inconceivable that women should have voting rights. Nowadays, everyone accepts they should have the vote. In time to come, votes for prisoners will have followed the same path.

I suggest the ECtHR regards the right to vote as so fundamental to democracy that to deprive someone of this right should only be used very, very exceptionally, if at all. It seems that our legislature does not give it such value as do our friends in Strasbourg. Therefore, more power to the ECtHR!!!

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