Europe says electoral reform means prisoners too

UK compliance must be in time to enable people in prison to vote in the 2011 Scottish, Welsh, Northern Ireland and local elections.

In its decision the Committee said it “regretted” that “no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment”. This is despite the justice minister Lord McNally promising in a debate in the House of Lords on 10 June that the government was “considering afresh the best way forward on the issue of prisoner voting rights” and would “fully update” the Committee on the government’s intentions in time for the meeting in September.

At the Liberal Democrat party conference, a spokesperson for Nick Clegg, who is now leading on the issue of prisoners voting, acknowledged that the government needed to act on the judgment. At a fringe event co-hosted by the Prison Reform Trust, justice minister Lord McNally said that the government would inform the Committee of its plans in time for their December meeting.

In its submission to the Committee ahead of the September meeting the Prison Reform Trust asked the Committee to consider serving the UK government, in the absence of any concrete action, with formal notice of its intention under Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms that it will refer to the Court the question of whether the government has failed to fulfil its obligation. Submissions were also made by, amongst others, the Aire Centre, Liberty, Penal Reform International and UNLOCK.

In its decision the Committee said it had instructed the Secretariat, in the absence of any concrete developments, to prepare a draft second interim resolution, and would resume consideration of the issue at its 1100th meeting in November – December 2010.

The failure of the government to inform the Committee of its intentions raises serious questions over whether it will be able to comply with the judgment in time for next year’s elections. At its meeting in June, following the election of the coalition government, the Committee “expressed confidence that the new United Kingdom government will adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court”.

Reiterating repeated warnings over the years to the UK authorities to comply with the ruling, the Committee’s decisions called upon the United Kingdom to “prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect”.

It made clear that, in complying with the judgment, any remaining restriction on the franchise should be “proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned”. This would appear to mean that disenfranchisement may lawfully be imposed only on a small number of prisoners who have been sentenced for electoral fraud or a related offence. This is consistent with a recent European Court judgment in April (Frodl V Austria) which clarifies that the vast majority of prisoners will need to be given the vote for the UK to comply with the European Convention.

In December 2009, the Committee adopted Interim Resolution CM/ResDH(2009)160, in which it expressed “serious concern that the substantial delay in implementing the judgment had given rise to a significant risk that the United Kingdom general election in 2010 would be performed in a way that fails to comply with the Convention”. Despite the Committee’s insistence to “rapidly adopt measures” to implement the judgment the 2010 general election it was held in breach of the Convention.

The Committee said it “deeply regretted that despite the Committee’s calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1,340 applications.”

Commenting on the decision just released by the Committee of Ministers at the Council of Europe, Juliet Lyon, director of the Prison Reform Trust, said:

“Foot dragging will no longer be tolerated by the Council of Europe which has given the coalition government just three months to comply with the outstanding Court judgement and, at last, overturn the outdated and counterproductive ban on prisoners’ voting.

“This unequivocal decision should concentrate ministers’ minds as they make plans for electoral reform. People in prison, with the exception of those proportionately punished for electoral fraud, must be taken into account and enfranchised in time for the elections in Scotland, Wales, Northern Ireland and the local elections in 2011.”

Notes

DECISION No. 6

ADOPTION AT THE MEETING

1092nd DH meeting – 15 September 2010

Section 4.3

– 1 case against the United Kingdom

74025/01          Hirst No. 2, judgment of 06/10/2005 – Grand Chamber

                       Interim Resolution CM/ResDH(2009)160

Decisions

The Deputies,

1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;
3. deeply regretted that despite the Committee’s calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;
4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;
5. regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment;
6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;
7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;
8. decided to resume consideration of this item at their 1100th meeting (November-December 2010) (DH) and instructed the Secretariat, in the absence of any concrete developments, to prepare a draft second interim resolution.

Available at the Council of Europe