The Continued Failure to Implement Hirst v UK

It is over a decade now since the European Court of Human Rights delivered Hirst v United Kingdom (6 October 2005), ruling that the UK’s blanket (legislative) ban on convicted prisoners voting breached Art 3 of Protocol 1 to the European Convention on Human Rights (hereafter, the ‘Convention’). Five years ago, in Greens and MT v UK (23 Nov 2010), the Court ordered the UK to table Convention-compliant legislative proposals to secure compliance with Hirst. This resulted in a Report of a special Joint Committee of the UK Parliament (the Report of the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill (16 December 2013)), which concluded that the law reform required to secure compliance with the Convention was comparatively minor and agreed that there were sound reasons to amend the law and proposed specific ways forward.

Two years on and the UK government has done no more than acknowledge the Report, which Parliament has not considered. With the law still not amended, on 9 December 2015 a further milestone in the chronology of prisoner voting saga occurred when the Committee of Ministers passed a second interim resolution highly critical of the UK’s inaction. The Daily Telegraph has reported this as a victory for the UK, although, in fact, the Committee of Ministers will return to the matter in December 2016.

This post discusses and criticises the reasons for inaction and non-compliance supplied by the Michael Gove (Lord Chancellor and Secretary of State for Justice) when he appeared before the House of Lords’ Select Committee on the Constitution on 2 December 2015 (Q 11, pp17-18 [unrevised version]).

When pressed for answers on the prisoner voting issue, Mr Gove conceded that the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill’s (hereafter the ‘Joint Committee’) Report ‘absolutely’ ‘deserve[d] in due course a fuller answer’. Nevertheless, he would not commit to when this would be, other than to say that it would be ‘after’ the publication of the consultation document on a proposed UK Bill of Rights (replacing the Human Rights Act 1998), which is to be expected in the new year.

Criticising the government’s position, Lord Lester said that he understood that when Dominic Raab (Parliamentary Under Secretary of State at the Ministry of Justice) had appeared before the Committee of Ministers in respect of Hirst (last September), the UK had been ‘attacked’ by seventeen States, whilst the eighteenth was Russia, which had indicated that it could well copy the UK example (regarding Russia on prisoner voting see Anchugov and Gladkov v Russia, and here; regarding Russia and barriers to implementation of the Convention see here). Lord Lester suggested that the ‘continued reluctance of the present government’ and its predecessors to abide by Hirst was ‘staining’ the UK’s reputation.

Referring to a non-binding vote of British MPs in February 2011, Mr Gove argued that, ‘the last Parliament made its view very clear on this issue’ and that, given the composition of the new Parliament, he could not envisage that its view would be ‘dramatically different’. He saw the emphasis ‘slightly differently’ to Lord Lester: ‘there were a number of countries that have argued that we should implement [Hirst] in order to ensure that the authority of the Court and the power of the Convention is upheld’; but there were ‘other countries’ including ‘good democracies’ which had ‘an enormous amount of sympathy’ with the UK. So, he asked, ‘Are we by not implementing the judgment, somehow letting the side down?’ ‘Whatever’ the government were to do, he said, ‘Parliament would not accept a change in the law to grant prisoners the vote’. So there was clash of two principles: ‘our desire to respect the European Court of Human Rights’ judgment’ in Hirst, and our desire to respect Parliamentary sovereignty, which ‘is the essence of our democracy’. In respect of that clash, Mr Gove ‘err[ed] on the side’ that you respect Parliamentary sovereignty, and argued that it ‘is not letting the side down if Parliament decides that it does not wish to implement [the Hirst judgment].’

To the extent that Mr Gove’s statement appeared to be an attempt to absolve the government of responsibility, shifting the blame to Parliament, several points may be made.

Firstly, a plea of Parliamentary sovereignty might be the government’s purported explanation for the inability to implement the relevant Strasbourg rulings, but it is not a defence at international law for failure to do so. Moreover, the Report of the Joint Committee argued that ‘the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights’ (para 111). The statement needs to be seen in the context of the whole Report. Obviously, the UK Parliament cannot be forced to change the law.

Secondly, arguably the UK is now breaching the specific international legal obligation set out in Greens and MT v UK. This required the UK to:

‘bring forward, within six months of the date upon which the present judgment becomes final [in fact November 2012], legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act [Section 8(1) of the European Parliamentary Elections Act 2002] in a manner which is Convention-compliant’ (emphasis added).

It is true that, responding to this (in November 2012), the government published the Draft Prisoner Voting (Eligibility) Bill. Back then, and controversial though it may have been (for the Bill included a non-Convention compliant option of reinstating the current prisoner voting ban, which the Committee of Ministers duly criticised) one might have regarded the Greens and MT order as fulfilled – for at that stage it might have been assumed that the Draft Bill was ‘intended’ to bring about an appropriate amendment to the law. Yet, despite the positive Joint Committee Report of two years ago, the government have made no attempt to progress the matter since. No legislative proposals have been put to Parliament. Responsibility for this clearly lies with the UK government.

Thirdly, if, given the chance to consider the matter, Parliament threatens to block implementation of Hirst, what has the government done to positively influence the situation? The Conservative’s general election manifesto boasted (apparently) that ‘we [have] stopped prisoners getting the vote’ (p 60), whilst various statements have been made by the Prime Minister indicating his opposition to legal change. If the government is to credibly maintain that it wishes to see the law changed, then it must set out an objective and balanced position on Strasbourg’s performance on the prisoner voting issue, and the merits of the case for change.

This brings us back to the Joint Committee’s 86 page Report, the product of many months of deliberation and submissions from numerous experts. It superseded the House of Commons’ debate of February 2011, when British MPs indicated their unwillingness to change the law (there was a subsequent House of Lords debate in defence of the Convention). Moreover, since 2011 Strasbourg has delivered a further Grand Chamber judgment on the prisoner voting matter (Scoppola v Italy No 3) which has been viewed as an appeasement judgment, and which the Joint Committee considered.

What then of Mr Gove’s claim that it would ‘not be letting the side down’ if the UK Parliament refused to implement Hirst?

Such a claim needs to be assessed against the backdrop discussed above: what is the government actually doing to ensure the side is not let down? Moreover, should the government not carefully consider the dangerous precedent it is setting for a 47 member State Convention system by suggesting that it is satisfactory for a national Parliament to block implementation of a Strasbourg ruling?

The point here is that the UK Parliament’s stubborn and unjustified non-implementation of Hirst would let the ‘side’ down – and especially so given the case for change made by the Joint Committee. The side in question is the Convention system itself as an effective system for the collective enforcement of human rights (see the Convention’s Preamble), which all member States have a vested interest in preserving and have agreed to submit to.

In this last connection one may recall a speech delivered by Prime Minister Cameron in Strasbourg in 2012, when he argued for the need to rebalance the relationship between the Court and the member States, highlighting the importance of the principle of subsidiarity. There is good evidence that Strasbourg is committed to doing this (as another recent Parliamentary Report suggests, see p 18), in particular in the light of the Brighton reform process, which the UK government led.

In his speech Prime Minister Cameron explained that ‘re-balancing this relationship is a two-way street’, ‘[t]he other side of the deal [being] that members get better at implementing the Convention at national level’ (emphasis added). To do so would ‘free up the Court to concentrate on the worst, most flagrant human rights violations’.

Mammadov v Azerbaijan (see here; and for related cases here) could be mentioned here. It concerned a political activist arrested on spurious grounds for denouncing actions of the national government on his blog. Strasbourg ruled, in effect, that his arrest and imprisonment were/are for political reasons (as this recent letter from the applicant to the Committee of Ministers also argues), but the Committee of Ministers’ calls for the release of Mammadov have gone unheeded. He remains in prison.

Mammadov was considered by the Committee of Ministers at its 8-9 December meeting, alongside the UK’s inaction on Hirst (see here). It seems hard to resist the conclusion that the continued failure to implement Hirst – especially in the circumstances described above – saps the Convention’s authority when it comes to the insistence that cases such as Mammadov are also implemented.

In the UK government’s latest communication to the Committee of Ministers regarding Hirst, a commitment has been made to a process of ‘dialogue’ regarding the implementation of the judgment. It will be led by Dominic Raab, who has made his opposition to implementing Hirst clear (see here: column 583, although this was before he took up his ministerial post). He is reported as saying that the law will not be changed ‘for the foreseeable future’ it being ‘a matter of democratic principle’.

In his evidence on 2 December 2015 Mr Gove argued that ‘parliamentary sovereignty and our traditions have been a more effective bulwark over time for individual rights than almost any other constitutional arrangement of which I can think’ [Q3, p 3]. These comments come at a time when there is considerable debate in the UK as to what the correct balance of power between the judiciary and Parliament should be under a possible UK Bill of Rights. Those who emphasise the role played by Parliament (and the executive) presumably do so on the basis that it actually engages with the matter in issue in a careful, considered and responsible way.

So, when, finally, Parliament gets the chance to address the prisoner voting issue will it and the UK government fully engage with the arguments set out by the Joint Committee in its Report of two years ago? Will the government also make it clear that what is at stake concerns much more than whether a small proportion of prisoners can vote?

In 1950, Sir David Maxwell-Fyfe (one of the Convention’s founding fathers) commented that:

‘the cause of human rights offers the Council of Europe an opportunity which may raise it high above the level of a political expedient and invest it with a dignity and authority which may prove one of the main sources of its strength’.

Similar comments could be made about the opportunity that the UK Parliament will have with respect to the prisoner voting issue (indeed, with its approach to the ECHR generally), with 2016 marking the 50^th anniversary of the UK’s acceptance of the Court’s jurisdiction.