On 12 August 2014, the Fourth Section Chamber of the European Court of Human Rights in Firth and others held yet again the UK’s blanket disenfranchisement of prisoners, in accordance with Section 3 of the Representation of the People Act 1983, to be a violation of Article 3 of the First Protocol to the ECHR.
The case concerned prisoners in Scottish prisons denied the right to vote in elections to the European Parliament (EP) held on 4 June 2009. Indeed, this outcome was to be expected in view of the Grand Chamber judgments in Hirst (no. 2) and Scoppola (no. 3). Notably, in EP elections, the UK’s disenfranchisement practices also affect the right to vote of EU nationals serving sentences in UK prisons (an issue which deserves jurisprudential attention).
I have previously critiqued the casual approach to the disenfranchisement of prisoners in the UK, manifested in the scant public attention given to the rejection of a legal challenge to the blanket disenfranchisement of prisoners in the 18 September Scottish Independence Referendum (by the outer and inner houses of the Scottish Court of Session and, on 24 July 2014, by the UK Supreme Court, with reasons to be given at a later date). In this instance, the Scottish government has not even attempted to justify the disenfranchisement of all prisoners, including prisoners that will be released before 24 March 2016, when an independent Scotland is to be declared following a YES vote (according to the ‘Scotland’s Future’ White Paper), relying instead on a literal (rather than purposive) reading of the A3P1 stipulation which refers to the ‘choice of the legislature’ to rule out its applicability to referendums (see the explanatory notes of the Scottish Independence Referendum (Franchise) Act). This is both disappointing and revealing, because it manifests an unprincipled approach to determining the franchise for the most fundamental of choices in an independence referendum (further discussion).
The UK Supreme Court in Chester and McGeoch refrained from addressing the ramifications of the UK’s continuous breach of the rule of law (note my critique). In contrast, the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill, unequivocally asserted in its 18 December 2013 report, at , that ‘the United Kingdom is under a binding international law obligation to comply with the Hirst judgment…it would be completely unprecedented for any state that has ratified the European Convention on Human Rights to enact legislation in defiance of a binding ruling of the European Court of Human Rights.’
Since no amending legislation was included in the June 2014 Queen’s speech, it now looks highly likely that the May 2015 general election will be held in continuous and defiant breach of the UK’s international obligations. While, as the parliamentary committee submitted, the UK has a ‘long tradition of respect for and attachment to the rule of law’, the almost 9-year refusal to comply with the 2005 ruling of the Grand Chamber in Hirst (no. 2) has tarnished its record. It is a sad testament to the current standing of the ECHR in the UK public discourse that none of the main political parties (or indeed none of the main figures in any party) seem to mind.