Prisoner voting cases

Today’s judgment of the European Court of Human Rights in Firth v UK is the latest in a long series considering the UK’s ban on prisoners voting in elections. Firth confirms the judgment going back to the Hirst case, that the UK is in breach of its obligations under Article 3 of Protocol 1 to the European Convention on Human Rights. The House of Commons Library has published a helpful note on the developments.

The UK’s ban has historic roots in the feudal notion of ‘civic death’; today though it is more usual to base the disenfranchisement on the notion that the convicted criminal has violated the ‘social contract‘ and so lost the moral authority to participate in collective self-government.

The UK is not unique among European countries in having such a ban; indeed Russia has also been criticized by the European court for its blanket ban (Anchugov). However an absolute ban seems the minority approach among European countries; others have a more tailored solution, or, as in the case of Ireland, permit prisoners to vote. Elsewhere the Canadian Supreme Court has struck down a disenfranchisement law affecting persons serving sentences of more than two years, while the South African Constitutional Court has held that the state must adopt practical arrangements to  facilitate prisoner voting. On the other hand, many states in the US retain prisoner disenfranchisement policies.

According to the European Court of Human Rights in Hirst, the blanket ban is a disproportionate restriction on the right to vote. In Frodl v Austria, a chamber of the court developed this in a a particualrly striking manner, saying that disenfranchisement should be reserved for serious offences and be decided upon by a judge on the basis of an individual assessment. Subsequently the court, in its Grand Chamber ruling in Scoppola No 3 , retreated from this interpretation of the Hirst case. In the light of Scoppola, the UK is required to amend its blanket ban  but can retain significant restrictions on the right of prisoners to vote. Despite this, movement on amending the legislation has been slow. The Government produced a draft bill in 2012 which has now been the subject of a detailed Joint Committee parliamentary report.

The Firth case reaffirms the European court’s position. It is notable though for two reasons, both of which are no doubt welcome to the UK Government. First there are two  dissenting opinions of judges; one judge argues the case is inadmissible (and if admissible there is no violation); the second judge, Judge Wojtyczek argues against a finding of a violation; he is very critical of the European court’s failure to articulate clear standards to guide national decision-making on this question. Second, the court has now awarded any compensation to the applicants, saying that the finding of a violation is sufficient. As there are more than 60,000 persons affected by the ban, the prospect of compensation has regularly featured in these debates.

This still leaves the UK in the same position, that it is in breach of its international obligations. Even more problematically, the Government’s seems to be considering the possibility that legislation could be introduced that simply reaffirmed the ban; according to the Joint Committee this would be without precedent in any European country. The Joint Committee makes the argument that even more important than the issue of votes for prisoners, is the maintenance of the international rule of law. If the UK can ignore a European court ruling on a prisoner disenfranchisement law, then so can others like Russia.

And if Russia could ignore a judgment on this topic, why not on other topics?