Thursday, December 03, 2009

Government Stalls on Prisoner Voting Rights

Readers will know of John Hirst, who runs the Jailhouselawyer blog. Over the last few years he has been campaigning for prisoners to get voting rights in general elections, something I am very much against. He had also taken the issue to the European Courts. Some time ago a judgement was issued which appeared to force the UK government into granting voting rights to prisoners.

The Council of Europe Committee of Ministers met earlier this week to consider Hirst v UK(No2) and the UK government's failure to respond to the Court's judgment.

The CoM considered that the UK has failed to provide an effective remedy by a national authority as required under Article 13 of the Convention. Because Article 13 was not incorporated into the Human Rights Act 1998, it follows, according to Hirst, that the HRA is not compatible with the Convention.

The CoM observed that only 4 respondents agreed with the government's position in the first consultation exercise to limit the franchise on the basis of sentence length and seriousness of crime, whereas 47% of respondents favoured full enfranchisement (which the government did not support or offer as an option).

Given this, the CoM sought an explanation as to why the government then decided to conduct a second consultation which sought to limit the franchise to those serving 4 years or under. The government response is a non-response. This is it...

Hirst (No.2) v. United Kingdom (application no. 74025/01)
Information submitted by the United Kingdom Government

The Government remains committed to taking appropriate steps to implement the judgment in Hirst (No.2) v. United Kingdom. We have now carried out a second, more detailed public consultation that takes account of the findings of the first stage consultation on how voting rights might be granted to serving prisoners, and the extent to which those rights might be limited in accordance with the judgment. The second consultation ran from 8 April - 29 September 2009. The consultation document proposed four options for enfranchisement based primarily on sentence length, invited views on those options, and also sought information from respondents on some of the practical issues raised by implementation. Over 100 responses have been received from individuals and organisations with an interest in the issue of prisoner voting rights. We now need to undertake detailed analysis of those responses, and to reach a view on the Government’s approach to implementing the judgment. The Government will keep the Committee of Ministers informed as it progresses this work.

October 2009

The CoM stated that the government was simply repeating what its position was prior to and throughout the Court proceedings in this case. And agreed with the stated JCHR that any further delay may result in the next election taking place in a way that fails to comply with the Convention (the election must be held in June 2010 at the latest).

"All the submissions, save for the government's, highlight the fact that the United Kingdom has not yet taken any concrete steps to implement this judgment and stress the concern of imminent similar violations if legislation is not passed before the 2010 general election".

One can understand why the government wishes to drag this out and delay making a decision. It is hardly going to be a votewinner, to introduce voting for prisoners, is it?

So, what now? The CoM will announce publicly, in 2 weeks, what is called an interim resolution which will force the UK government to announce the measures it will be taking - or else.

According to John Hirst, if the government fails to comply within the stated time limit, the CoM invokes the final resolution and the Court suspends or revokes the UK's EU membership. The authority to do so rests with the UK's duty to abide by both the Convention and Court's decisions. I'd love to hear a proper legal opinion on this.

But the real question remains. Does the government intend granting prisoners voting rights in advance of the next election, or not?

Footnote: Interestingly, Latvia which joined Hirst's application as an interested party announced that it is now giving all convicted prisoners the vote.


golden_balls said...

A bit cheeky for you to make comment on a prisons topic and and yet not comment on yet another "cast iron promise" that DC has gone back on.

But if you won't mention it neither will i.

Anonymous said...

Frankly, I find it amazing that lawers and ministers are blathering on about voting rights when, as I posted recently, the Government has manifestly failed to improve sentencing and rehabilitation strategy. Does the EU not think that sorting out rehabilitation is at least a little bit more important than spending years arguing over which prisoners should be given the right to vote?

It is amazing that Eurocrats are wringing their hands over the extension of the franchise to criminals instead of complaining about a prison system that practically guarantees that inmates are prepared to return to a life of crime as soon as they leave. Good work, Labour.

Matthew Dear said...

"CoM invokes the final resolution and the Court suspends or revokes the UK's EU membership"

Well, that makes it easy for DC. Continue in obduracy - Europe issue solved for him.

Although, I'm not sure that's correct, but it's been a while since I studied EU Law. I could give you an opinion, but I don't have the time...

Chris said...

Err, why shouldn't prisoners get the vote?

Road_Hog said...

"According to John Hirst, if the government fails to comply within the stated time limit, the CoM invokes the final resolution and the Court suspends or revokes the UK's EU membership."

Right, this is a win-win situation. If the government gives them the vote then Labour get the blame for it. If the government doesn't give them the vote the we can have the UK's EU membership revoked, fantastic.

Road_Hog said...

"According to John Hirst, if the government fails to comply within the stated time limit, the CoM invokes the final resolution and the Court suspends or revokes the UK's EU membership."

Right, this is a win-win situation. If the government gives them the vote then Labour get the blame for it. If the government doesn't give them the vote the we can have the UK's EU membership revoked, fantastic.

The Boiling Frog said...

Of course the superb irony is that John Hirst has had to go to supreme unaccountable European institutions to give prisoners the same pointless right to vote as the rest of us.

Osama the Nazarene said...

Brilliant!!! Brown, through his dithering, might take us out of the EU. Job done, UKIP can disband.

This is yet another issue where EU judicial activism seeks to override local law. We're better off out of it and Dave should give us an in-or-out referendum sometime in the next parliament.

Chris, prisoners, through their offence(s) have forfeited a number of rights and "it is right" that voting is one of these rights. What the fxxx has the EU got to do with it!

Golden balls if you're worried about the Tories' back tracking on the sell off of Victorian prisons then imho they have taken a very sensible position. The lovely inner city real estate sites of these prisons are not quite so lovely at the moment. Hopefully this does not mean that they are back tracking on the provision of more prison places as these are sorely needed. Just some other form of funding has to be found.

Pete Chown said...

Suspends the UK's Council of Europe membership, presumably, not EU membership. The Council of Europe, and the European Court of Human Rights, are not part of the EU. (The EU court is the European Court of Justice.)

I wonder if prisoners would tend to be Labour or Tory voters, on the whole? I think I know the answer to that, but perhaps I'm prejudiced. :-)

tapestry said...

give lags the vote. that'll be a catchy election theme.

right policy. wrong moment.

David Boothroyd said...

Important to remember: the judgment only said that the blanket ban on prisoners convicted and serving their sentences in gaol was incompatible. It did not say that all prisoners had to be enfranchised.

As far as I see it the Council of Europe does not have any powers over UK membership of the European Union - a completely different body. This is an ECHR case not an ECJ one.

Unsworth said...

@ golden-balls

Why do you think you are the editor of this blog?

'A bit cheeky'? Who do you think you are?

Anonymous said...

Like Pete Chown says, this is unlikely to have any effect on EU membership, because it is the Council of Europe that is involved here. Anyone taking this country's stupid citizenship test knows the difference!

The UK was one of the founding members of the CoE in 1949, so those of you saying whining on about "unaccountable institutions" can shut up now.

JuliaM said...


And I didn't think Gordoom's mob had any further to go in ensuring that as few people vote for them as possible. But votes for prisoners would pretty much do it!

Bring it on!

Alan Douglas said...

People of the sort who end up in prison used to be referred to as OUTLAWS.

They by their actions have shown themselves to be not in accord with their society. Why should they expect to have the right to influence that society by voting ? Case dismissed.

Alan Douglas

tapestry said...

Here are two young prisoners who deserve a break.....


Voting seems a minor issue when human rights are being abused by our fellow EU partner countries, in this case Hungary.

Ian said...

Given the increasing number of quasi-political crimes that are being crammed into the statute books, perhaps it's time that prisoners were given them vote.

Nobody should be disenfranchised in a modern democracy, except perhaps the clinically insane.

jailhouselawyer said...

Whilst it is accepted that the Council of Europe and the European Union are separate institutions, however, under the ‘Copenhagen criteria’ States seeking to become Members of the EU or remain within the EU must abide by both the Convention and European Court of Human Rights decisions.

Belarus which sought to become a Member had sanctions imposed because of concerns at the failure to abide by the Convention and ECtHR decisions. By the same token, the UK is in danger of at the very least being suspended from the EU for the same human rights violations.

The Boiling Frog said...

As others have pointed out this is an ECHR case not an ECJ one,


the Lisbon Treaty makes the charter legally binding from 1st December so ECJ is bound by the judicial precedents of the ECHR therefore it becomes an EU issue.

The fly in ointment though is the UK has opt-outs on the charter so how it affects our EU status should we not comply becomes complicated.

Carl Gardner, Head of Legal said...

Yes, it's not the EU, it's the Council of Europe.

The Council of Ministers could theoretically suspend the UK's membership and ask it to withdraw, but I'd say it's very, very unlikely. Vanishingly unlikely. It's not clear the delay in itself amounts to a "serious violation of human rights", which is the test under Article 8 of the Statute of the Council of Europe. And do all those ministers themselves allow prisoners to vote? Turkey? Russia? They're right to nag the UK, but I can't see them going that far.

There is then a link to the EU, though. Ultimately, under article 7 TEU, if the European Council unanimously thinks the UK is in "serious and persistent breach" of human rights, the UK's right under the Treaties could be suspended - which is not quite the same as being expelled from the EU. But how likely is this? The UK only needs one supporter. And even if it happened, the UK could correct things quickly and be "unsuspended" by bringing in some urgent legislation. I can't see Van Rompuy putting any of this on the agenda.

I think the ECtHR's judgment in Hirst was wrong, and the government is right to want to implement it minimally. But it does have to be complied with at some point. I think the next general election is bound to be missed, though - and there's no legal mechanism in this country, under the Human Rights Act, to force prisoners' votes next spring or to derail the election. Something like that was tried in Scotland before the last Scottish elections, and failed. Someone could get a "declaration of incompatibility" against the legislation in a judicial review, but that doesn't change the law or give prisoners the vote.

Nor do I think the UK is about to be suspended in the foreseeable future either from the Council of Europe or the EU.

Morus said...

But this is the Council of Europe's Committee of Ministers, rather than the Council of the European Union, or the EU's Council of Ministers.

The Council of Europe has the European Court of Human Rights, whereas the EU has the European Court of Justice, and the European Court of First Instance (not to be confused with the European Court of Auditors).

To understand the structure of all of these, and why there are somewhere between 10 and 14 'Presidents' at a European level, take a look at this:

Anonymous said...

Once, I would have said that a person who breaks the law made by democratically elected Parliamentary representatives forfeits his/her right to vote.

The area is much greyer now. Labour has introduced so many new crimes via statutory instrument, or passage through Parliament to which our representatives pay scant attention. Murderers, muggers & rapists get off with a slap on the wrist and no prison sentence. Presumably there is no question about their right to vote. God help you if you commit a financial or thought crime, you will get banged up and forbidden to vote. Since there are so many people in prison who don't belong there compared with the thugs that go free, I am inclined to think that prisoners should be allowed to vote.

Lauchlan McLean said...

Revoke our membership of the EU! cannot come too quickly.

Pete Chown said...

Boiling Frog: not exactly. Lisbon makes the European Convention on Human Rights binding on the EU institutions. It doesn't create any new responsibilities for the member states. In particular, a member state which is alleged to have broken the ECHR cannot be taken to the (EU) Court of Justice. The procedure for member states is unchanged; they are pursued through the Council of Europe in the same way they always were.

Incidentally, this is one reason why David Cameron's latest EU policy makes no sense. He wants an opt-out from the Charter of Fundamental Rights, but the Charter doesn't bind the UK government anyway. If he got an opt-out, I suppose it would mean that the EU institutions didn't have to respect human rights when dealing with British people!

................................. said...

I'd have thought Brown would jump at the chance to give lags the vote.

After all, surely Labour can only benefit from votes for crooks...

Danvers said...

Loving the prospect of prisoners getting the vote coupled with the introduction of elected Chief Constables, leading to Inspector Plod actively canvassing votes from the lags he has helped to lock up.

The other irony is that given the high rates of illiteracy in prisons you can bet that most prisoners never voted before they were locked up.

I say give them the vote to keep the EU quiet and then whenever any one is locked up, add the suspension of their voting rights (along with their freedom) to the sentence.

What a colossal waste of time and money.

jailhouselawyer said...

Carl Gardner, Head of Legal:

The UK signed up to and ratified the European Convention. Along with this comes the obligation for the UK to abide by the Convention and the ECtHR decisions.

Hirst v UK(No2) shows that the UK was in violation of Article 3 of the First Protocol of the Convention.

According to Article 44 - Final judgments
1 The judgment of the Grand Chamber shall be final.
2 The judgment of a Chamber shall become final a when the parties declare that they will not request that the case be referred to the Grand Chamber; or
b three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or
c when the panel of the Grand Chamber rejects the request to refer under Article 43.
3 The final judgment shall be published.

According to Article 46 - Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

1-4 December 2009: Committee of Ministers to supervise the execution of European Court of Human Rights judgments

Rules of the Committee of Ministers for the supervision
of the execution of judgments

It cannot be right that a court makes a judgment and the offender ignores it. Therefore it is only logical that there must be a mechanism of enforcement. Otherwise rogue States would be allowed to get away with its breaches of citizens human rights.

Rule 11 relates to enforcement. Both the ECtHR and Committee of Ministers recognise the problem of systemic failures, and this is why in February the ECtHR will undergo reforms, and the CoM will be given more powers.

Whilst all Member States have signed up to Protocol 14, Russia has yet to ratify it. In effect, this means that because the UK is hiding behind Russia, Russia is denying UK prisoners the vote. This is unacceptable for the UK to be dependent upon Russia for our human rights.

It is clearly a confusing topic. The UK cannot claim to favour human rights and yet ignore them when it suits. Human rights extend to even unpopular groups in society. One of the roles of the ECtHR is to protect these vulnerable groups in society, whether they be gypsies, gays or prisoners from the State or wider society.

It has to be said, the UK has failed to properly understand the Hirst v UK(No2)judgment. Rather than getting bogged down in what the government claims the judgment does not say, the government should concentrate on precisely what the judgment does say.

Battersea Boy said...

Possibly the real reason for the Government to delay is because they've realised that, by giving votes to prisoners, they would be giving votes to people who run small businesses and that those people are not likely to be Labour supporters...

Twig said...

Votes should be weighted in accordance with your age, educational attainments and contribution to society to prevent a vicious circle where state dependent voters support a party who in turn engineer more state dependency to maintain themselves in power until eventually the parasites kill the host.

Service personal should get two votes, because they put their lives at risk for the nation for a pittance.

Gordon Brown should be in prison.

Sean Haffey said...

Let's follow through the logic here.

Prisoners get the right to vote. It's a marginal seat so the MP-to-be canvasses them.

And s/he finds out that their view is that (for example) those convicted of minor theft should not be jailed.

S/he wins the seat, argues the case and it becomes law.

Next election, prisoners convicted of GBH are the swing voters. Well, this is democracy, isn't it? Better do what they say, too.

And so on and so on.

On the other hand, keeping people locked up is very expensive, so perhaps we could get budget savings here.

Golly. It's a win-win situation!

haddock said...

sorry Iain, the opinion of a self publicist whose biggest claim to fame is killing an old lady with an axe is not very high on my important list.

as for "the UK is in danger of at the very least being suspended from the EU for the same human rights violations."

is it really that easy ? let's go for it.

Mirtha Tidville said...

I thoroughly agree with Alan Douglas.If you want to excercise your democratic rights dont go theiving....The Government is right for once

Ian said...

Sean Haffey: a counter-example.

A government MP in a very marginal seat is reliably informed that the election could be decided by as few as 20 votes.

He badgers the Home Secretary to put pressure on the local chief of police to bang up 30 known opposition supporters for 7 days, under a law that his government introduced.

The 7 days just happen to span the date of the election, ensuring these "criminals" can't vote.

The MP returns to power, and votes in more laws that he can use to cling on next time.

More seriously, if someone recieves a 7 day sentence, and those days cover the date of an election, is it fair to disenfranchise that person for 5 years?

Democracy isn't about only letting people you like vote - it's about trusting in society as a whole to come up with the right choice. Personally, I'd rather have prisoners voting than full-time benefit clients......

golden_balls said...


That my opinion if you don't like it tuff.

James said...

Ian: that wouldn't be enough, since the people rounded up by the politically-motivated Chief Constable would not be *convicted criminals* (no conviction!)

If allowing *some* criminals to vote, I could accept enfranchising, say, those sentenced to no more than six months. If their demands go any further, this cannot be tolerated: better to withdraw entirely, if there is no other way to escape this imposition.

Joe Public said...

Oh the irony of allowing criminals to vote for (potential) fraudsters.

Anonymous said...

And you believe that Cameron can negotiate a better deal for us do you?

Just another salutary reminder that the EU makes all decisions for the UK now and there is nothing we can do about it until we leave.

Freedom is dying across Europe. Last time Western Europe was subjected to Imperial decree the UK was free to resist, this time we are not. Who will save Europe now?