#13585 - Prisoner Voting Quick - European Human Rights Law

Prisoner Voting

Constant conflation between: (i) considering the competence of the ECtHR to make such judgments, and; (ii) the substantive/penological/philosophical right to vote.

1. Overview of the jurisprudence:

Hirst v UK (No 2) held that Section 3(1) of the Representation of the People Act (1983) breached the right of prisoners to vote under Article 3, Protocol 1 of the ECHR.

• It is important to note that the ECtHR did not object to the notion of disenfranchisement as a punishment, merely the automatic and systematic nature of the blanket ban.

• In particular, they had issue with the lack of distinction between prisoners of different types with different sentences.

While Hirst was a rather deferent judgment in that it afforded extensive discretion to the Member States (with proportionality as the single criterion), Frodl took a far more prescriptive approach.

• Here, the First Section mandated requirements that would have to be met before the right to vote could be withdrawn: (i) lengthy term of imprisonment, (ii) direct link between conviction/disenfranchisement, and (ii) imposed by a judge.

  • Arguably, this followed the Court’s reasoning to its logical conclusion, but meant that the right to vote would only be removed in the exceptional case of a crime which directly related to the electoral process.

• However, Scopolla and then (specifically in relation to the UK), Greens & MT v UK, re-affirmed the advisory nature of Hirst.

  • ‘The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed’.

  • This may be attributed to a fragmented approach of the differing Chambers (Hunt).

McHugh v UK recently confirmed the incompatibility of the UK’s position, though did not order costs or damages.

• This could have exerted great pressure on the UK and might be seen as respecting the margin of appreciation.

2. Philosophical ambiguity

Issue is that the entire debate is based upon a genuine and reasonable disagreement as to the purpose of imprisonment and disenfranchisement.

• In particular, the distinction noted by Lazarus between personal and residual liberty: while personality liberty undertakes a proportionality analysis viewing the criminal sanction as a whole, residual liberty is restricted to the view of what is needed for the effective administration of imprisonment.

  • Paterson: ‘men go to prison as punishment, not for punishment’. Test of punishment/test of imprisonment.

• Seen in the difference between Mellor (sanction as a whole) and Daly (residual liberty).

General argument is that ‘individuals who break the law should not be allowed to choose the representatives who make the law.’

• However, an individual may break the law for a number of reasons, it does not lead to the conclusion that they are incapable of making a reasoned judgment and contribute to the making of law.

Appears to be a practice of ‘rights-trivialisation’ in failing to recognise that the right to vote is a fundamental human right (King).

• While this does not necessarily prevent it being taken away – liberty is also a fundamental right – it does indeed require greater and more direct reasons.

• It is difficult to construe the arguments as effectively translating in this way – i.e. in taking away the right to vote in particular.

King addresses why specifically the right to vote is targeted. Penal policy is clearly not on a tit-for-tat basis, though if it were, would not translate.

1. The practice punishes crime – considering the severe removal of fundamental rights that incarceration indicates, the right to vote appears dwarfed and arbitrary.

2. The practice prevents crime – again, hard to imagine that the loss of liberty would not impact here, but the loss of the vote would.

3. Enhances civic responsibility – actually more convincing in the reverse.

Should not necessarily attempt to solve the underlying dispute – accept the ambiguity and make compromises as to the differing views, in the context of different institutions.

• Hunt points out that there is not a solid historical foundation for disenfranchisement.

3. Competences of the ECtHR and national parliaments

Problem is that there is not disinterested party. Prisoner voting has expanded to be a far more contentious and significant issue than the sum of its parts.

• On one hand, the ‘unconstrained decision-making by elected representatives may invade the basic human rights of individuals and minorities’ (Fredman).

  • If a counter-majoritarian view is taken of human rights, then any ‘politicisation’ of the considerations is dangerous, in that it may sacrifice the interests of the minority – prisoners, in particular, are unpopular.

• On the other hand, parliaments are democratically elected and therefore can more legitimately make these decisions – penology can fairly be considered a political issue.

The two do not need to be at odds with each other, but the issue is that the relationship has been clouded by mutual distrust (O’Neill).

This mistrust of a supra-national court has manifested in two particular ways:

• Euro-scepticism.

  • Hunt: ‘the inevitable linkage of the issue of prisoner enfranchisement with Euro-scepticism… neglects Strasbourg’s efforts’.

  • Means that unfavourable judgments are linked to the supranational nature of its source.

• Fear or juridification.

  • Gone to the extent of describing the activities of the court as ‘...