Contact details:
Parliamentary lead: Finola Kelly finola.kelly@equalityhumanrights.com
Legal lead: Clare Collier clare.collier@equalityhumanrights.com

The Equality and Human Rights Commission (the Commission) welcomes the opportunity to provide evidence to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill.
Since the Commission ’ s remit as a National Human Rights Institution and under s.9 Equality Act 2006 is to encourage and support the development of a society based on human rights principles, it is our role to encourage and assist the government to implement the judgments of the European Court of Human Rights (ECtHR) expeditiously and effectively.
The Commission has advised the government that the Hirst v the United
Kingdom [2005] ECHR 681 (Hirst), and Greens and M.T. v the United
Kingdom [2011] ECHR 686 (Greens) judgments of the ECtHR should be implemented without delay. We have also made submissions to the
Committee of Ministers of the Council of Europe who supervise the execution of judgments of the ECtHR and the Commission intervened as a third party in Greens.
In this submission we focus on what is required to comply with the
United Kingdom ’ s legal obligations and our analysis below is based on our understanding of the relevant case law. The Commission has addressed only matters within its statutory competence. We have therefore not responded to every question in the call for evidence.
The Commission ’ s legal analysis is that a restatement of the existing ban (i.e. complete disenfranchisement of prisoners) would not satisfy the
Committee of Ministers as effective implementation of the Hirst and
Greens judgments. If that option were adopted the government would inevitably be vulnerable to further claims, including the many cases that are currently stayed by the ECtHR, and compensation would be likely to be awarded. However, the ECtHR has made clear in its judgment in
Scoppola v Italy (No.3) [2012] ECHR 868 (Scoppola), accepting the
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United Kingdom Government ’ s argument, that each state has a wide discretion as to how to regulate any ban so long as it does not constitute blanket disqualification. The Commission ’ s legal opinion is therefore that either options (a) or (b) in the draft Bill would now constitute effective implementation of the Hirst and Greens judgments.
If the government fails to implement those judgments at all, this would, on the Commission ’ s analysis of the case law, leave the United Kingdom open to claims before the ECtHR, and to further protracted litigation.
a. Disqualifying prisoners sentenced to 4 years or more in prison from voting.
In summary, the Commission ’ s analysis is that disqualifying prisoners sentenced to 4 years or more in prison from voting would meet the concerns of the ECtHR. Our legal opinion is that any further challenge brought by a prisoner in the ECtHR if this option had been adopted would be very likely to fail.
For further analysis please see our response to question 5 below. b.
Disqualifying prisoners sentenced to more than 6 months in prison from voting.
The question as to whether a cut-off at six months would satisfy the terms of the Hirst and Greens judgments is more finely balanced. Legal commentators have expressed differing opinions. On the Commission ’ s legal analysis, following the Grand Chamber decision in Scoppola, there is now a much greater chance that the ECtHR would accept disenfranchisement of prisoners serving more than a 6 month sentence as a reasonable way of implementing the earlier Hirst decision, if legislation were brought in to that effect following extensive
Parliamentary debate.
The Grand Chamber in Scoppola summarised the findings in Hirst that:
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“ the legislation of the United Kingdom depriving all convicted prisoners serving sentences of the right to vote (section 3 of the 1983 Act) was “ a blunt instrument [which stripped] of their Convention right to vote a significant category of persons and it [did] so in a way which [was] indiscriminate ” . It found that the provision “ impose[d] a blanket restriction on all convicted prisoners in prison. It applie[d] automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.
”
It concluded that “ such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No.
1 ” [86]
It went on expressly to reaffirm those principles [96] “ in particular the fact that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1 ”
The Commission ’ s analysis of that finding is that any restatement of the existing ban would not rectify the breach identified in Hirst. What is needed is a system in which disqualification is not indiscriminate, but is based on a relevant factor, such as one of those identified: length of sentence, nature of the offence, gravity of the offence, or individual circumstances of the case.
There has been no guidance from the ECtHR as to whether, if sentence length were the only determining factor, a cut-off of any particular sentence length would be appropriate; so it is impossible to say for certain what the court would find on the facts of any particular case. It is the Commission ’ s legal opinion that option (b) would now more likely than not rectify the breach identified in Hirst.
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c.
Disqualifying all prisoners serving custodial sentences from voting - a restatement of the existing ban.
It is true that in some cases, the ECtHR defers to decisions taken by democratically elected legislatures after debate. However, the case law of the Court indicates that this ‘ margin of appreciation ’ does not extend to situations where the very essence of the right to vote is impaired, or where a measure does not reflect the aims of the universal suffrage principle.
We therefore consider that, even if the current ban were re-adopted after extensive debate, the ECtHR (and the Council of Ministers, which is supervising the enforcement of the Hirst (No.2) and Greens judgments), would be unlikely to regard that as sufficient to cure the breach of the
Convention highlighted by the Court in Hirst.
In Zdanoka v Latvia ( Application no. 58278/00 26 March 2006), the
Court observed that features “ unacceptable in the context of one system may be justified in the context of another ” ; and in Py v France [2006] 42
EHRR 26 it accepted that there were “ local requirements ” justifying a residence requirement which otherwise “ might appear disproportionate to the aim pursued ” [57-65]. This explains why there can be different systems lawfully operating across contracting states.
However it is clear from Scoppola at [96] cited above, that a blanket disqualification of all serving prisoners from voting would continue to constitute a violation even if it followed extensive Parliamentary debate.
The House of Commons vote on 20 February 2011 which reaffirmed the legislature ’ s preference for retaining the existing ban (by voting by 234 to
22 against narrowing the scope of section 3 of the Representation of the
People Act 1983) was taken before the hearing in Scoppola. The court was aware of that vote and declined to say that in those circumstances a restatement of the existing ban would be acceptable. In the
Commission ’ s legal opinion, the law is very clear that if option (c) of the draft Bill were adopted the breach in Hirst would not be rectified and the court would find against the government on its next reconsideration of the issue. This could happen soon as there are 2354 cases pending
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which have been adjourned until 30 September 2013: Firth and 2,353 others v the United Kingdom (applications no. 47784/09 and others) 1 .
A wide range of approaches to reforming the law on prisoner voting could be Convention compliant. These include:

full enfranchisement

individual judicial decisions at sentencing

disqualification for particular types of offences

disqualification only for those who have committed very serious offences
The Commission has no view on which of the many possible Convention compliant systems should be introduced. Our concern is only that the judgment be implemented without further delay and that the new system comply with the requirements of Hirst, as further explained by the court in Scoppola. See further below at question 6.
Question 2.
Why is the right to vote considered to be a human right?
Relevant Legal Framework
The relevant provision of the ECHR is Article 1 of Protocol 3. It provides:
“ The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
”
1
ECtHR Factsheet - Prisoners' right to vote, March 2013
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As with all treaties, the Convention must be interpreted in the light of its
‘ objects and purpose ’ , central to which is promotion of the ideals and values of a democratic society. The Governments which acceded to the
Convention after the Second World War did so:
“ ... Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend ...
” (Preamble to the ECHR).
Thus, Article 3 Protocol 1 has been widely interpreted. Although it is not immediately obvious from the wording of the Article, the Court has established that this provision guarantees important individual rights, including both the right to vote and the right to stand for election 2 .
The individual rights which Article 3 Protocol 1 protects are regarded by the ECtHR as crucial to maintaining the existence of a democracy and the rule of law: Zdanoka v Latvia (2007) 45 EHRR 17 (Grand Chamber) at [115]. Consequently they are ascribed particular importance by the
ECtHR in the European legal order. The United Kingdom has bound itself to that legal order, and thus to observe the pronouncements of the
ECtHR on the correct interpretation of Convention law and to implement its judgments.
The relevant provisions of the International Covenant on Civil and
Political Rights, which the United Kingdom ratified in 1976, read as follows:
Article 10
“ 1.
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
...
3.
The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation
...
”
Article 25
2
See Mathieu-Mohin v Belgium (1987) 10 EHRR 1 at 47-53
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“ Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
”
In its General Comment no. 25 (1996) on Article 25 of the International
Covenant on Civil and Political Rights, the United Nations Human Rights
Committee expressed the following view:
“ 14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote.
The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.
”
In its views on the Yevdokimov and Rezanov v. Russian
Federation case (21 March 2011, no. 1410/2005), the Human Rights
Committee, stated:
“ 7.5
... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the
Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2, paragraph 3, of the Covenant ...
”
Of further potential relevance are the guidelines from the European
Commission for Democracy Through Law (the Venice Commission) which in 2002 indicated in what circumstances the Commission felt deprivation of the right to vote was acceptable:
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“ i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence; v. furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.
”
The nature of the protected right
The case law of the ECtHR gives some guidance as to the nature of the right to vote and how it must be protected. The first and significant feature is that the Court treats the right to vote as just that: a right, and not a privilege. The Grand Chamber stated in Hirst that universal suffrage is the “ basic principle ” [59] of European democracy, and any departure from it “ risks undermining the democratic validity of the legislature thus elected and the laws it promulgates ” [62]. As such, the
“ presumption in a democratic state must be in favour of inclusion ” [59].
This has important implications for prisoners. As convicted criminals, they have lost the right to liberty for the duration of their sentence. But they are presumed to retain all civil rights not expressly removed: Golder v UK (1975) 1 EHRR 524. They remain within the protection of the
Convention, and thus retain all the other fundamental rights and freedoms it guarantees, such as the right to marry or practise their religion, or to be free from inhuman or degrading treatment.
The Court has frequently emphasised that there is “ no question ” that “ a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction ” [Hirst at 70] 3 . Insofar as such
Convention rights are absolute, they remain; insofar as they are qualified
3
In their concurring opinion in Hirst , Judges Tulken and Zabregelsky viewed the restriction as simply the result of an individual being imprisoned and thus wholly arbitrary and unacceptable.
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rights, any restrictions upon them have to be properly justified and proportionate.
Restrictions on the right to vote are permitted (for prisoners as they are with the population generally) providing that any conditions imposed are a proportionate means of achieving a legitimate aim, and do not “ thwart the free expression of the people in the choice of the legislature ” [Hirst
62, 71]. Restrictions must “ reflect ” or “ not run counter to ” the need to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage [Hirst 62].
So, for example, a minimum voting age for the population is acceptable because it could be imposed in order to ensure voters are sufficiently mature to understand the process they are participating in. A minimum income limit, however, would be unacceptable because it would not reflect the basic principle that all citizens have an equal say in the choice of Government, and such a condition could not, accordingly, be reconciled with the underlying purposes of Article 3 Protocol 1.
Question 4.
What are the financial implications of maintaining the current ban in terms of claims by prisoners for compensation?
Eventually an inevitable consequence of maintaining the current ban is that individual prisoners would begin to be awarded damages by the
ECtHR as just satisfaction for breaches of their Article 3 Protocol 1 rights. It is right to point out that the ECtHR is relatively slow to award monetary compensation, at least in circumstances where a declaration of right is considered sufficient ‘ just satisfaction ’ . In Greens , the Court considered that its declaration of breach of Article 3 Protocol 1 was sufficient just satisfaction.
The Court may take a different view if it does not believe that the UK
Government is making a conscientious attempt to implement its decision in Hirst . If the principles in that case and Scoppola are not properly implemented in English law soon, the ECtHR may start to award financial compensation as just satisfaction to individual prisoners who are deprived of a right to vote, and have no other remedy. It is very difficult to speculate as to the level of such awards.
In England and Wales at the time of the Hirst judgment, there were approximately 48,000 prisoners. By February 2009, just before
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consideration of Greens, there were approximately 63,000 serving prisoners in the United Kingdom excluding Scotland, and approximately a further 7,500 further serving prisoners in Scotland. On 10 May 2013, the prison population in England and Wales was 83,151.
4
For the reasons given above there are strong legal grounds for believing that the next time the ECtHR considers this matter if the current ban is maintained it will award compensation. In the absence of any change in the law or credible proposals actually to amend the law, compensation will be awarded to all the existing applicants and there is no doubt that other prisoners will lodge claims when they realise that compensation is available.
Financial awards for just satisfaction from the ECtHR are binding in international law. The United Kingdom has never failed to comply with such a decision.
Question 5. Is sentence length a legally robust basis on which to retain an entitlement to vote?
Where more than one system is capable of complying with the
Convention, the ECtHR is inclined to ‘ hold off ’ from judging a particular restriction to be disproportionate if this is a legitimate democratic choice.
This is known as the margin of appreciation, and the state is generally afforded a wide margin in determining what amounts to a fair electoral system in particular local conditions, given the numerous different ways that a healthy democratic system can be ordered and the wealth of differences in historical development, cultural diversity and political thought within Europe.
It remains the case that there is a significant variation across Europe in the way that states have approached the question of prisoners ’ voting rights in the light of the Hirst judgment. When that decision was handed down, 18 countries had full prisoner enfranchisement; in 13 there was full disenfranchisement or no arrangements to enable voting; and in 12 there was some kind of restriction on the rights of prisoners to vote.
These included cases where the courts remove civil rights at the time of sentence; cases where prisoners are automatically barred from voting if sentenced to five years or more and the removal of the vote from those
4
Ministry of Justice (2013) Population and Capacity Briefing for Friday 10 May 2013.
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convicted of serious violations of international law (among other variations).
Since the Hirst decision, there appears to have been a steady move towards removing restrictions. In February 2010, the Prison Reform
Trust reported that 40% of Council of Europe countries now have full enfranchisement of prisoners (Ireland, Cyprus and Latvia have all removed blanket bans). Only “ a handful ” including Armenia, Bulgaria,
Estonia, Hungary and Romania still automatically disenfranched all sentenced prisoners 5 .
At the time of the Scoppola decision 19 of the 43 Contracting States examined in a comparative law study placed no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus,
Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Moldova,
Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, the former
Yugoslav Republic of Macedonia and Ukraine. Seven Contracting States
(Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United
Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote.
The remaining 17 member States (Austria, Belgium, Bosnia and
Herzegovina, France, Germany, Greece, Italy, Luxembourg, Malta,
Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey) have adopted an intermediate approach: disenfranchisement of prisoners depending on the type of offence and/or the length of the custodial sentence.
In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court
(Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands,
Poland, Portugal, Romania and San Marino). In Greece and
Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision.
In several early cases, the European Commission of Human Rights 6 considered that restrictions on the voting rights of those convicted of several kinds of “ uncitizenlike conduct ” were acceptable. In Hirst, the
5 “
Barred From voting
”
, February 2010
6
Until reforms to the European Convention system, decisions were taken by a
‘ Commission ’ and the ‘ Court ’ . This system has now been abolished, but decisions of the Commission retain precedent value: s2 Human Rights Act 1998.
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Court gave two examples of general disenfranchisement of those who had “ seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations ” [71]. In such cases, the Court held, such a measure was acceptable because there was a “ discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned ” [71].
In Zdanoka it was further noted that those who had committed “ serious or financial ” crimes could also in some cases conceivably have their rights restricted [105].
This idea, of a necessary link between the nature of the offence and the nature of the penalty, can also be seen in some provisions of English law. For example, under s.160 of the Representation of the People Act
1983, persons found guilty of certain types of “ corrupt or illegal practices ” by the Election Court can be disenfranchised for a limited period, as well as barred from holding any elective office.
In Hirst, the Court explained the key questions in assessing the compliance of any system with Article 1 Protocol 3 as firstly, whether the measure had a legitimate aim; and secondly whether there has been arbitrariness or a lack of proportionality and whether the restriction interferes with the principle of universal suffrage.
The aim of the automatic ban under consideration in Hirst, was variously explained by the UK Government as additional punishment to deter criminals, or as a way to enhance civic responsibility and respect for the rule of law 7 . The Court agreed that such aims were not incompatible with the Convention per se , and a wide range of purposes might be compatible with Article 3 Protocol 1. Thus, it is likely that these espoused aims would also constitute legitimate aims for an automatic ban on voting based on the length of sentence.
7
See also the justification advanced before the Divisional Court in Hirst by the UK
Government, which seems as Laws LJ observed in Chester, to go too far in its characterisation of the right to vote as a privilege of society:
“
By committing offences which by themselves or taken with any aggravating circumstances including the offender's character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention.
Removal from society means removal from the privileges of society, amongst which is the right to vote for one's representative ” Chester v Secretary of State for Justice,
[2010] EWCA Civ 1439.
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However, it is clear that it would not be acceptable to adopt a ban on prisoners voting based on the perceived weight of public opinion:
“ Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion ” [Hirst 70]
A potential difficulty with basing any new system on length of sentence is the lack of any “ discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned ” .
In Kiss v Hungary (Application No 38832/06, 20 May 2010), where the applicant was mentally ill and had been disfranchised the court concluded that “ an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.
” [44]
In Frodl v Austria (2011) 52 EHRR 5, the Court considered an automatic and general ban on all those serving a sentence of at least a year and whose crime was committed with intent. In a short and strongly worded judgment, the Court found this blanket measure breached Article 3
Protocol 1, because it lacked the crucial “ discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned ” which had been identified by the Court in Hirst (a phrase repeated in several places in this judgment, including at [25] and
[35]). The court held that any decision should be made on an individual basis, by a judge, and that the offence should be pertinent to the decision to disenfranchise [34,35].
However, the Frodl judgment has effectively been overruled in this regard by the more recent judgment of the Grand Chamber in Scoppola and therefore does not provide a good basis for determining the necessary features of a Convention compliant system.
The relevant passages of Scoppola have been dealt with above at options (b) and (c). For the reasons given in those sections, the
Commission ’ s legal analysis of that judgment indicates that the court would now be likely to consider length of sentence an acceptable basis on which to base a system of voting disqualification.
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Question 6.
What would be the likely legal consequences, both domestically and internationally of: a) keeping the law as it is?
Signatories to the ECHR agree to abide by judgments of the Court under
Article 46, and there is a general presumption that all responsible states will do so 8 . However, this obligation is technically only binding as a matter of international law.
This does not mean there are not potentially serious consequences for failure to implement a judgment. Membership of the Council of Europe depends on a commitment to “ accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified ” (Statute of the Council of Europe, Article 3). Any serious violation of this may lead to a state being asked to withdraw or being removed from membership of the
Council (Article 8) (membership of which is a condition of membership of the European Union). However, on the Commission ’ s analysis this is would be extremely unlikely in practice.
The United Kingdom generally has a good record and reputation when it comes to implementation of judgments against it which it relies on when encouraging foreign states to respect human rights and abide by the rule of law. It is therefore more in the international political arena that a failure to amend the law will be felt rather than in explicit legal terms.
8
Article 46 (1) provides: “ The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties ” . The Court has held that this creates a “ legal obligation ” to put an end to any violation found and to redress so far as possible its effects (Scozzari and Giunta v Italy Applications nos.
39221/98 and 41963/98, 13 July 2000, Papamichalopoulos and Others v Greece 31
October 1995, Series A no. 330-B, pp. 58-59, § 34). The execution of Court judgments is monitored by the Committee of Ministers of the Council of Europe under article 46(2). Under its Rules for the supervision of the execution of judgments and of the terms of friendly settlements (May 2006), the CoM may in such
“ exceptional circumstances ” institute infringement proceedings at the Court when a contracting state refuses to abide by a final judgment (Rule 11).
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b) passing legislation giving some prisoners the right to vote, but in a way that maintains a form of blanket restriction?
In Hirst, the Court declined to take up the Government ’ s invitation to give guidance on what if any restrictions might be compatible with the
Convention, reiterating that it was “ primarily for the state concerned to choose ” how to discharge its obligations under Article 46 ECHR to give effect to a judgment of the Court that an existing provision breached the
Convention. Where, as in the case of prisoners ’ voting rights, contracting states had “ adopted a number of different ways of addressing the question ” , the Court would leave it “ to the legislature to decide on the choice of means ” [Hirst 83-84]. Following this, in its decision in Greens, the Court again stated that there are “ numerous ways of organising and running electoral systems and a wealth of differences ” . The Court ’ s role in this area was said to be “ a subsidiary one ” with domestic policymakers ’ views given “ special weight ” [113].
The issue of quite how much weight was directly considered in Hirst. It appears to have been on this point that the lack of a “ substantive debate ” among MPs on the continued justification of the measure, and purported failure of parliament or the courts “ to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote ” was taken into account. The absence of such debate reduced the weight that could be given to the Government ’ s assessment.
However, the Court will not apply the ‘ margin of appreciation ’ in cases where it considers the very essence of the right to vote has been violated; and that was its view on the absolute bar to prisoners voting in
Hirst .
The Court was anxious to stress that the margin of appreciation is
“ not all embracing ” [Hirst 82], and that any limitations imposed must not only be properly thought out; but also must not depart from the essence of the right and interfere with the free expression of the people.
In other words, the lack of consensus across contracting states of the
Council of Europe does not mean that the choice of conditions is open ended, nor that there will not be consequences in future for those whose systems continue to remain outside the range of acceptable alternatives.
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It is not entirely clear what kind of system is envisaged by this question.
As we have stated above, it is the Commission ’ s legal opinion that a system based on automatic disqualification based on sentence length would be likely to comply with the Convention, even where no element of judicial determination in the individual case were involved. However, for instance, a system where all prisoners remained disenfranchised except where expressly enfranchised by the sentencing judge, for instance, would not do so. c) seeking to comply by enfranchising the minimum number of prisoners possible consistent with our international legal obligations?
So long as the system adopted is indeed consistent with the state ’ s international legal obligations there would be no legal consequences in international or domestic law. That is self-evident from the criteria. The only question is where the threshold for minimum number of prisoner so as to ensure compliance would lie. Given the history of the matter it is quite likely that any system that does not clearly comply with Hirst, and therefore with international legal obligations, will be challenged through the domestic courts and in the ECtHR. The volume, cost and length of such litigation will be greater the more borderline any new system is considered to be. There is therefore merit in ensuring that the threshold of Convention compliance is clearly met when a new system is enacted.
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The Equality and Human Rights Commission is an independent statutory body established under the Equality Act 2006. The Commission works to reduce inequality, eliminate discrimination, strengthen good relations, and promote and protect human rights. As such, the Commission is the designated independent body required by European Union Equality
Directives to promote equal treatment without discrimination 9 .
The Commission has also achieved ‘ A ’ status accreditation as a National
Human Rights Institution, enabling us to participate in the United Nations
Human Rights Council, and to undertake monitoring of the UK ’ s human rights obligations 10.
www.equalityhumanrights.com
9
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, article 13 and Directive
2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), article 20.
10
Principles relating to the status and functioning of national institutions for protection and promotion of human rights ’ (the Paris Principl es).
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