Prisoner Voting Drama or Much Ado about Nothing

In this post, Kanstantsin Dzehtsiarou of the University of Liverpool - a founding member of the Human Rights in Action project - reflects on the issue of prisoner voting in the UK in order to show that, despite arguments to the contrary, the European Convention on Human Rights "does not undermine the sovereignty of the UK".  

Introduction

There has been a lot of ‘bashing’ the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 by the British authorities and media in relation to prisoner voting rights. This dramatic development started in 2005 when the European Court of Human Rights (ECtHR) delivered a judgment in the case of Hirst (No 2) v the United Kingdom in which it declared that the absolute ban on prisoner voting that existed in the UK breaches the ECHR. This blogpost argues that this issue received absolutely disproportionate attention in the UK. It also demonstrates that the UK authorities were effectively able to nullify the impact of this judgment on the law in the UK. This shows that the HRA does not undermine the sovereignty of the UK and there are avenues to negotiate the impact of the HRA if so required.

Prisoner Voting Drama

Is prisoner disenfranchisement the most pressing human rights issue in Europe? The Contracting Parties to the ECHR face some major structural human rights challenges - such as inadequate conditions of detention, excessive length of court proceedings, and violation of the human rights of illegal migrants - yet the prisoner voting challenge dominated for years the debates surrounding the ECtHR.

Many prisoners abstain from voting even if they have the right to do so. For example, after prisoners were enfranchised in Ireland the number of those who have used their right to vote has been very low. Of course, it is not possible to attach a definite value to a human right merely by measuring how often it is used, and the ECtHR should not only deal with brutal violations of the most basic rights. However, the relatively infrequent invocation of the right needs to be considered both by the ECtHR and by the national stakeholders when framing the debate around the issue. 

Taking into account the minor impact of the issue of prisoner voting on the bigger picture of human rights protection in Europe, it is surprising that the issue has been largely shaping the narrative of the discussion of human rights in Europe, and especially in the UK. The prisoner voting debate is distracting the attention of stakeholders from violations of other ECHR rights and has the potential to undermine the very stability of the whole Strasbourg system.

It seems that three key conditions coincided in the prisoner voting debate that made it so problematic, and these have very little to do with the quality of the ECtHR’s judgment or the role of the HRA in the infrastructure of the British legal system. Firstly, because voting rights are usually determined by legislation, national parliaments can block the execution of the ECtHR’s judgment. Secondly, the ECtHR’s judgment concerns unpopular minorities, easily vilified in the media and among the voting public. Thirdly, parliamentarians may perceive this to be a question in which the ECtHR should not get involved. In some countries, this may be because the question is perceived as ‘political’. In others, it may be a microcosm of broader Euroscepticism.

The accumulation of these three conditions may explain why decisions as to prisoner voting cause standoff in some counties, but not in others. Thus, in Austria, the judgment in Frodl v. Austria was executed without any major issues, and in Ireland the national parliament initiated appropriate reforms without there having been any specific ECtHR judgment against them. Yet in Russia, Turkey, the UK—all states with growing levels of Euroscepticism—the prisoner voting issue is a major bone of contention.

Much Ado about Nothing

The Committee of Ministers of the Council of Europe supervises the execution of judgments of the ECtHR. It can close the supervision when it is satisfied with the execution. In 2018, the Committee did exactly that in relation to Hirst No 2. The government made changes to the policy and guidance to the prison service to make it clear that two categories of previously effectively disenfranchised convicted prisoners – those on temporary licence and on home detention curfew – are now able to vote. The Committee of Ministers accepted this arguably symbolic gesture of the UK government. 

The Committee of Ministers, I would argue, effectively accepted the non-execution of Hirst No 2 as execution. This is because, in reality, the changes made by the domestic authorities, mean that only a handful of people who previously could not vote are now able to vote. The impact of the ECtHR’s judgment is therefore negligible. The prisoner voting case law is exceptional in this sense, however it proves that the ECtHR judgments can be used in order to initiate a discussion at the national level and in some cases, the ECtHR should not be perceived as an ultimate decision-maker of the last resort. The ECtHR is open to a dialogue and the HRA facilitates such a dialogue rather than undermines UK sovereignty. This does not mean that in other clearcut cases the Committee of Ministers would be satisfied with such minimal compliance with the ECtHR judgments. The prisoner voting case law shows that if the domestic authorities are dissatisfied with the solutions suggested by the ECtHR, the HRA is unable to force them to accept these solutions. 

They cannot be forced because, according to the HRA, the Westminster Parliament possesses the ultimate power of decision-making and gives national courts an avenue to express their legal concerns about the alleged incompatibility of primary legislation with human rights norms. The HRA just provides the national courts with an instrument that would allow them to highlight problematic pieces of legislation by issuing declarations of incompatibility. This gives Parliament an opportunity to pre-empt violations of human rights and avoid possible Strasbourg judgments by addressing these issues domestically. This helps to harmonise national and international legal systems without unnecessary tensions. 

The HRA has also empowered the national courts to take into account the case law of the ECtHR.  Here, the HRA is not premised on imperative subordination between the ECtHR and national institutions; it allows the national courts to interpret national legislation in light of the case law of the ECtHR but does not oblige them to automatically follow ECtHR case law.

Conclusion

Some media outlets and politicians alike present the HRA and the ECtHR as institutions that can undermine British sovereignty and democracy.  A lot of political discussion surrounding the HRA is based on the false premises that it can represent a threat to British democracy.  The HRA did not create a particularly wide avenue for the ECtHR to impact the national legal order in the UK. 

The HRA does not force the Westminster parliament or national courts to follow every judgment of the ECtHR by the letter. The prisoner voting case law and its implementation illustrate this argument perfectly.