affiliated to the International Association of Constitutional Law
On 6 December 2018, the Committee of Ministers of the Council of Europe closed the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) and adopted final resolution CM/ResDH(2018)467. Thirteen years after Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 (Hirst) was made final, the protracted prisoner voting stalemate is over. Case closed. Or is it?
This post provides an overview of the background context to the prisoners’ voting rights clash and assesses the Government’s administrative amendments to prisoners’ voting rights. This post will contend that the amendments are disappointing and inadequate. At the domestic level, the amendments bypassed Parliament’s involvement and at the supranational level, the Committee of Ministers’ approval of the amendments undermines the effectiveness of rights protection. It will be argued that the amendments fail to satisfy the case law of the European Court of Human Rights (ECtHR) on prisoner voting. The issue of prisoners’ voting rights therefore remains open in the UK.
In the UK prisoners are disenfranchised upon incarceration in accordance with section 3 of the Representation of the People Act 1983 (RPA 1983). The prisoner voting ban does not include those imprisoned for contempt of court, default of a sentence, unconvicted mental patients and prisoners on remand. In Hirst the Grand Chamber held that the UK’s ‘general, automatic and indiscriminate’ ban on prisoners’ voting, violated Article 3 of Protocol 1 (A3P1) to the European Convention on Human Rights (ECHR)  , .
The general antipathy in the UK towards enfranchising prisoners is encapsulated by David Cameron’s assertion that the thought of giving prisoners’ the right to vote made him ‘physically ill’ (HC Deb 3 November 2010, vol 517, col 921). Therefore, despite the UK’s obligation under Article 46(1) of the ECHR to abide by judgments of the ECtHR, the UK’s compliance with Hirst proved elusive and a constitutional clash between the UK and Strasbourg ensued.
The ECtHR’s approach to prisoners’ voting rights was reaffirmed in subsequent cases. In Greens and MT v United Kingdom (2011) 53 EHRR 21 (Greens and MT) the ECtHR held the UK’s non-compliance sustained the violation of A3P1 . The ECtHR applied the pilot judgment procedure, suspending pending applications and the UK was given six months to introduce legislation  , . In Scoppola v Italy (No 3) (Scoppola) (2013) 56 EHRR 19 as the third-party intervener, the UK Government challenged the Grand Chamber’s judgment in Hirst. However, the Grand Chamber resolutely reaffirmed the principles established in Hirst .
Despite the general hostility towards prisoners’ voting rights, the Government made some attempts to comply with the judgment in Hirst. For example, in 2012 the Ministry of Justice published the Voting Eligibility (Prisoners) Draft Bill and in 2013 the Joint Committee examined the Draft Bill and published a report which recommended that legislation should be introduced, allowing prisoners serving sentences of 12 months or less to vote. However, due to domestic opposition the proposals were not implemented and the uneasy stalemate continued. At the supranational level, the pressure on the UK to comply intensified, as in subsequent prisoners’ voting rights cases the ECtHR consistently restated the judgment in Hirst. Additionally, in 2015 the Committee of Ministers adopted an interim resolution (CM/ResDH(2015)251) and expressed concern that the UK had failed to comply with Hirst. The Committee of Ministers called upon the UK to continue to engage in a high level dialogue to facilitate compliance with the judgment.
The Administrative Amendments
Ultimately, the enhanced dialogue between the UK and the Committee of Ministers proved productive. On 2 November 2017, the former Secretary of State for Justice, David Lidington, announced in the House of Commons that the Government intended to introduce ‘administrative changes’ to prisoner voting, with the important qualification that ‘the bar on convicted prisoners in custody from voting’ was preserved (HC Deb 2 November 2017, vol 630, cols 1007 –1008). Lidington stated that first, when an offender is sentenced to a term of imprisonment, the sentencing judge will be required to ‘make it clear’ that the prisoner would be disenfranchised. Second, prison service guidance would be amended to enable offenders released on temporary licence to vote. Lidington clarified that this amendment will enable ‘up to one hundred offenders’ to vote, but importantly, ‘none of them will be able to vote from prison’. This would primarily include prisoners serving short sentences, deemed eligible for release on temporary licence. Lidington concluded that the proposed measures complied with the judgment in Hirst ‘in a way that respects the clear direction of successive Parliaments and the strong views of the British public’ on prisoner voting.
The immediate response to Lidington’s announcement in the House of Commons was generally positive; Robert Neill MP praised David Lidington ‘on having grasped the nettle’ and Cheryl Gillan MP stated it represented an ‘elegant and sensible solution’. However, Kerry McCarthy MP noted that the change was ‘a tiny concession from the Government’ and still resulted in the deprivation of rights. Conversely, reflecting the pervading rancour that underpinned the prisoner voting clash, Philip Davies MP argued that the amendment would be ‘about as popular with the general public as finding a rattlesnake in a lucky dip’ and that the ECtHR was composed of ‘unelected, unaccountable pseudo-judges’ (HC Deb 2 November 2017, vol 630, cols 1008-1013).
On 2 November 2017, the UK Government submitted an action plan (DH-DD(2017)1229) to the Committee of Ministers, which included the proposals presented by Lidington in the Commons. Notably, the action plan added that prison guidance would be amended to make it clear that prisoners released on Home Detention Curfew can vote. Having reviewed the UK’s action plan, the Committee of Ministers announced in December 2017, that due to ‘the wide margin of appreciation’ the proposed measures satisfied the requirements established in the ECtHR’s case law and ‘strongly encouraged the authorities to implement the proposed measures as soon as possible’ (CM/Del/Dec(2017)1302/H46-39). In September 2018, the UK submitted an action report (DH-DD(2018)843) which confirmed that the UK had implemented the amendments. In December 2018 the Committee of Minsters adopted a final resolution and closed the supervision of Hirst.
Compatibility with Domestic Constitutional Principles
Lidington repeatedly emphasised that there was no change in the law, rather it was an administrative amendment to prison service guidance:
‘Labour, coalition and Conservative Governments have all taken the view that UK laws are a matter for elected lawmakers in the United Kingdom and have not enacted any change to legislation. The Conservative Government continue to believe that convicted offenders who are detained in prison should not vote’. (HC Deb 2 November 2017, vol 630, col 1007)
Therefore, the Government cunningly avoided legislative change to the RPA 1983 and in doing so, ensured that the administrative amendments circumvented Parliament’s involvement. However, currently the RPA 1983, and as subsequently amended by the RPA 2000, does not specify that prisoners released on temporary licence are permitted to vote. Surely this should have been introduced by way of legislative amendment to the RPA 1983? Arguably, the Government capitalised on Parliament being preoccupied with other matters, such as the immensely challenging and time-consuming issues concerning Brexit. Nonetheless, due to the divisive context of prisoner voting, an amendment, however small, should have been legislative and subject to scrutiny by Parliament. The amendments are steeped in irony, as throughout the protracted prisoner voting clash, the ECtHR’s judgments on prisoners’ voting rights were criticised for failing to respect parliamentary sovereignty and democracy (HC Deb 10 February 2011, vol 523, col 501). Yet, these amendments undermine the very principles that have been lauded as fundamental. It seems that at times parliamentary sovereignty is deployed as a rhetorical device, a label which can be conveniently applied to advance the political agenda. It is submitted that this may provide evidence that a central reason for the prisoner voting clash was to safeguard the UK’s sovereignty as a state from European influence, rather than to uphold parliamentary sovereignty.
The administrative amendments illustrate how the prisoner voting clash raises questions regarding the appropriate division of power between institutions and their respective roles. In a move which was unforeseen, the executive succeeded in removing a highly contentious issue from Parliament’s scrutiny, which is perhaps a presage of growing executive power. Domestic courts also wrestled with the issue of prisoners’ voting rights. For example, in Smith v Scott  CSIH 9 the court took a strong stance and made a declaration of incompatibility that section 3(1) RPA 1983 was incompatible with A3P1 . However, no action was taken to remedy the declaration of incompatibility, which exposed tensions between the courts and the elected branches. In R (Chester) v Secretary of State for Justice and another; McGeoch v Lord President of the Council and another  UKSC 63  AC 271 the Supreme Court declined to issue a second declaration of incompatibly, as the issue was under ‘active consideration’ by the UK Parliament . Prisoner voting was firmly held to be in Parliament’s remit. Yet how would the Supreme Court view the administrative amendments? As noted, the Court adopted a deferential approach on the basis that Parliament was considering the issue. Therefore, if this issue is litigated again, it is questionable whether the Supreme Court will deem the Government’s amendments as satisfactory.
This solution has been dressed up as the magic bullet that will end the intractable prisoner voting clash. Therefore, do the amendments demonstrate that the UK’s general malaise towards enfranchising prisoners has subsided? At first glance, the UK’s amendments could be regarded as positive, the UK has finally complied with its obligations under Article 46(1) ECHR. However, upon analysis, it is questionable whether the amendments comply with the judgment in Hirst. Instead, the amendments reveal how the malaise towards enfranchising prisoners persists.
In Hirst the Grand Chamber stated that although ‘the margin of appreciation is wide, it is not-all embracing’ and the RPA 1983 was disproportionate as it ‘remains a blunt instrument’ arbitrarily and indiscriminately disenfranchising prisoners, falling ‘outside any acceptable margin of appreciation, however wide that margin might be’ , . However, under the administrative amendments prisoners continue to be indiscriminately disenfranchised, the RPA 1983 has not been amended. Therefore, it is highly questionable that providing ‘up to one hundred’ extra prisoners with voting rights would have been the compliance envisaged by the ECtHR, as the RPA 1983 still ‘remains a blunt instrument’. Further, in Greens and MT the ECtHR held that the UK ‘must introduce legislative proposals’ . In Scoppola, the ECtHR stipulated that states can either ‘leave it to the courts to determine the proportionality of the measure […] or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’ . Therefore, it is clear that the ECtHR considered that legislative amendment was required. Although states have a wide margin of appreciation, this minor administrative amendment does not appear to be a solution envisaged by the ECtHR.
Nevertheless, the Committee of Ministers approved the Government’s amendments and held that the measures satisfied the ECtHR’s case law on prisoners’ voting rights. However, as noted above, it seems questionable that the ECtHR would regard these amendments as satisfactory. The Committee’s approval appears incongruous with the ECtHR’s case law on prisoners’ voting rights. Could this be used to support arguments that the Strasbourg Court erred in finding that the prisoner voting ban violated A3P1 in the first place? Was it correct that the ban was held to be a blanket ban? The Committee’s endorsement of the amendments could dent the cogency of the ECtHR’s judgment in Hirst, as the amendments are so minor that the ban in the RPA 1983 remains intact and it could be questioned whether the RPA 1983 was correctly found to be disproportionate.
Despite this, as the ECtHR consistently reinforced Hirst in subsequent prisoners’ voting rights cases, the ECtHR’s position is clear and it is regrettable that the Committee regards this minor administrative amendment as compliance. It is arguably disconcerting that the institution responsible for ensuring the execution of the ECtHR’s judgments seems to have capitulated in this way. Although the Committee of Ministers repeatedly criticised the UK, ultimately the Committee hid behind the wide margin of appreciation. Arguably, this is an indication of institutional weariness. Alternatively, there might be other influencing factors. For example, arguably the climate of Euroscepticism and objections to supranational rights enforcement, forced the Committee to adopt a more deferential approach. However, this deferential approach could have detrimental consequences to the effectiveness of the ECHR and could hinder the protection of rights. Arguably, the Committee of Ministers’ acceptance of minimum compliance from a state can be just as damaging to the ECHR as failing to comply. For example, during the prisoner voting clash, concern was expressed that other states would be encouraged to follow the UK’s recalcitrant example. Whilst the Committee of Ministers did not condone the delay, the approval of the amendments might expose a chink in its institutional amour, which could be exploited by other states – demonstrating that delay can pay off, the potency of the ECtHR’s judgments can be diluted and legislative amendment avoided.
It is unlikely that this proposal will be a solution, as it seems an inevitability that this issue will litigated by UK prisoners in the ECtHR at some point in the future. If such a case arises, it will be interesting to see how the ECtHR considers the Committee of Ministers’ endorsement of the UK’s amendment, it is possible that a future clash will arise.
Overall, the amendments highlight the UK Government’s aversion towards prisoners’ voting rights, as the Government shirked its obligations by opting for minimum compliance. Therefore, it is not an elegant and sensible solution. Not only do the amendments undercut the UK’s democratic processes, but the right to vote and the protection of rights more generally are also undermined. It is an assault on the values to which democratic states ascribe and a hollow victory for the protection of rights. It raises a plethora of questions regarding the appropriate institutional divisions of power and roles of institutions in rights based decision making. At the European level, the robustness of the Committee of Ministers can be doubted. It is unlikely that the issue of prisoners’ voting rights in the UK is closed. The door to future litigation remains open.
Elizabeth Adams is a Ph.D. Candidate at the University of Liverpool.
(Suggested citation: E. Adams, ‘Prisoners’ Voting Rights: Case Closed?’, U.K. Const. L. Blog (30th Jan. 2019) (available at https://ukconstitutionallaw.org/))