UK vs ECtHR: The Prisoner Voting Saga Continues

by | Aug 14, 2014

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About Ruvi Ziegler

Dr. Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, School of Law, where he is the Director of Postgraduate Taught Programmes and co-Chair of the LGBT+ staff network. Ruvi is an Associate Academic Fellow of the Honourable Society of the Inner Temple; Research Associate of the Refuge Studies Centre, University of Oxford; Editor of the Reporter and Co-convenor of the Migration and Asylum Section of the Society of Legal Scholars; Senior Research Associate of the Refugee Law Initiative (Institute for Advance Legal Study, University of London) and Editor-in-Chief of its Working Paper Series. Ruvi's public engagements include serving as Chair of the Board of Trustees of New Europeans Association UK; Chair of the Oxford European Association; A Britain in Europe academic expert; and an advisory council member of Rene Cassin. Previously, Ruvi was a visiting researcher at Harvard Law School’s Immigration and Refugee Clinic and with the Human Rights Program; and a Tutor in Public International Law at Oxford. Ruvi is the author of Voting Rights of Refugees (Cambridge University Press, 2017). Ruvi's areas of research interest include International Refugee Law, Electoral Rights and citizenship, Comparative Constitutional Law, and International Humanitarian Law. Ruvi holds DPhil, MPhil, and BCL degrees from Oxford University. For more information see: www.reading.ac.uk/law/about/staff/r-ziegler.aspx. Follow Ruvi on twitter @ruviz

Citations


Ruvi Ziegler, “UK vs ECtHR: The Prisoner Voting Saga Continues,” (OxHRH Blog, 14 August 2014) <http://humanrights.dev3.oneltd.eu/?p=13089> [date of access].|Ruvi Ziegler, “UK vs ECtHR: The Prisoner Voting Saga Continues,” (OxHRH Blog, 14 August 2014) <https://ohrh.law.ox.ac.uk/?p=13089> [date of access].|Ruvi Ziegler, “UK vs ECtHR: The Prisoner Voting Saga Continues,” (OxHRH Blog, 14 August 2014) <https://ohrh.law.ox.ac.uk/?p=13089> [date of access].|Ruvi Ziegler, “UK vs ECtHR: The Prisoner Voting Saga Continues,” (OxHRH Blog, 14 August 2014) <https://ohrh.law.ox.ac.uk/?p=13089> [date of access].

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 [229], 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.

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2 Comments

  1. Andrew Turek

    What do you think the ECtHR would make of this:

    Allow prisoners sentenced to five years or less to vote if, and only if, they are already on the electoral register when they are sentenced. They could then vote (by post, I think!) for the local authority and constituency where they were registered – there would not be enough to affect the results anywhere. It would include those interested enough to be registered and exclude the chancers.

    • Ruvi Ziegler

      Dear Andrew, Thanks for your comment. I think that, save on (contested) grounds of margin of appreciation, the court is unlikely to accept- as a matter of principle – disenfranchisement of prisoners just by virtue of the fact that they have not registered to vote prior to their incarceration. While exercising one’s right to vote may be subject to registration, it is incumbent on public authorities to facilitate registration; if prisoners sentenced to less than five years should retain their right to vote, then they should be able to register whilst in prison in advance of an election cycle.

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