30 October 2017

Prisoner Voting and Power Struggle: a Never-Ending Story?

On 29 October 2017, it was announced that the UK authorities are planning to revoke the blanket ban on prisoner voting and allow those who are sentenced to under a year in prison to go home for a day and vote. This was done to ensure the compliance with the judgment of the European Court of Human Rights in the case of Hirst No 2 which was delivered in 2005. It took the UK government twelve years to come up with a proposal that would put English law in line with the case law of the European Court of Human Rights.

It is very unlikely that this suggestion will have any impact on voting patterns in the UK. Only 8% of the overall prison population in 2016 were inmates incarcerated for 1 year or less. Since, the overall prison population is about 85000, only about 7000 people will potentially become enfranchised as a result of this reform. With over 47 million registered voters this number is really negligible. The UK authorities waited for twelve year to formally comply with the judgment of the Court that does not change much in real terms. Even despite this, the proposed amendment has been severely criticised by the backbench MPs. So, the crust of this problem is not in the real impact of prisoner voting legislation on elections – it is in general Euroscepticism of the British political elites. Also, some MPs can use this opportunity to show that they are tough on crime. This rhetoric is also merely symbolic since that disenfranchisement has virtually no deterrent effect. It is unlikely that the threat of disenfranchisement can succeed where the threat of imprisonment fails. They can also argue that they take back control from the Strasbourg Court. This is also not entirely correct as this control can be taken back only when the European Convention is denounced.

As Professor Fiona de Londras and I argue in our upcoming monograph “Great Debates on the European Convention on Human Rights” “We might ask why it is that this question has generated so much controversy… Three key conditions are present for this to cause such a standoff. Firstly, because voting rights are usually determined by legislation, national parliaments can block the execution of the Court’s judgment. Secondly, the judgment concerns unpopular minorities, easily vilified in the media and among the voting public. Thirdly, parliamentarians may perceive this to be a question in which the ECtHR should not get involved. In some countries, this may be because the question is perceived as ‘political’. In others, it may be a microcosm of broader Euroscepticism. In others, such as Russia and the UK, it may be a mixture of both.

The accumulation of these three conditions may explain why decisions as to prisoner voting cause standoff in some counties, but not in others. Thus, in Austria, the judgment in Frodl v. Austria was executed without any major issues, and in Ireland the national parliament initiated appropriate reforms without there having been any specific ECtHR judgment against them. Yet in Russia, Turkey, the UK, and potentially in Bulgaria—all states with growing levels of Euroscepticism-—the prisoner voting issue is a major bone of contention.”

It seems that prisoner voting has become a symbolic rather than real battle for human rights in Europe. It is symbolic because the real life impact of losing or winning is very limited. Of course, voting rights are important for democracy which is the only compatible system of government with the European Convention on Human Rights. Of course, prisoner rights are also important and worth fighting for but proper treatment of prisoners, good conditions of detention are perhaps more pressing in many European countries than the issue prisoners’ disenfranchisement. The Court has extensive case law on the former issue. At the same time, the effectiveness and legitimacy of the Strasbourg system are undermined by the fact that prisoners are not allowed to vote due to the fact that this case law is not complied with.

Both the Court and the states needed to make concessions in relation to prisoner voting to preserve the legitimacy of the system. The ECtHR has already downgraded the standard required. In Frodl v Austria the Court suggested that the only system compatible with the Convention will be the one in which disenfranchisement is decided by the sentencing judge in each individual case and only when the crime can justify disenfranchisement. For example, perhaps crimes against the state can be appropriate here. In Scoppola No 3 the Court rolled back from this demanding standard by saying that automatic disenfranchisement can be compatible with the Convention if it is not blanket. In Italy, those in prison for under three years could vote and therefore the Court did not find a violation of the Convention.

The UK is the founding member of the Council of Europe, it normally complies with the judgments of the European Court and it is considered by many as the birthplace of human rights. The proposed changes in the UK law will have almost no impact the UK elections but it will deprive those countries in which serious human rights violations can happen of the argument in favour of non-execution. As Ed Bates pointed out, the UK cannot pressure Azerbaijan in compliance with human rights judgments if the UK itself has an unenforced judgment in its docket for more than ten years.

One can argue that the UK resistance to comply with the Hirst No 2 judgment was one of the reasons for Russia to fail to implement a similar judgment in Anchugov and Gladkov v Russia. Implementation of the Court’s judgment is complex and lengthy due to the fact that the states have to effectively volunteer to execute. The Committee of Ministers is a political body of the Council of Europe that is responsible for execution. However, its main “weapon” is diplomatic pressure. The level of such pressure on Russia in prisoner voting cases can be very limited because the UK has failed to implement an identical judgment.

The move of the UK government to enfranchise prisoners should be welcome as it shows that the UK is still committed to collaboration with the European Court of Human Rights. At the same time, the delay of twelve years of execution of the Court’s judgment is clearly unacceptable.

SUGGESTED CITATION  Dzehtsiarou, Kanstantsin: Prisoner Voting and Power Struggle: a Never-Ending Story?, VerfBlog, 2017/10/30, https://verfassungsblog.de/prisoner-voting-and-power-struggle-a-never-ending-story/, DOI: 10.17176/20171030-225743.


  1. Ed Bates Tue 31 Oct 2017 at 12:40 - Reply

    Very interesting, thank you.

    It remains to be seen, I think, what the actual proposals for law reform are. They could be a good deal more restrictive (with even less impact) than is set out in your para 2. We will have to wait and see.

    For those looking upon this affair with bewilderment – why is granting some prisoners the vote such an enormous deal to the UK? -, as you indicate, it is hardly about prisoner voting at al! Instead, for certain politicians it is regarded as part of the larger picture of resistance to a Court that has lost credibility (in their eyes), if not its legitimacy in relation to the UK (I do not advocate that, just to be clear!). That is how politicians opposed to the Court would see it.

    Then again, the Court has gifted its critics an opportunity. I say this for I would also suggest that ‘political constitutionalists’ would likely argue that the substantive issue at stake is a prime illustration of one in respect of which Strasbourg – an international court -has exceeded its remit. I would agree with the latter (Hirst was a v poor judgment; see Lord Sumption’s critique in Chester), but none of that justifies non-compliance, and especially all the deleterious effects of the UK’s refusal to implement the ruling.

    At the deleterious effects may yet continue. After all, a token effort to reform the law may present a real dilemma for the Committee of Ministers. I suspect that the UK government will argue that this is the best chance you (the Committee) will have of getting this troublesome case of your books, for (they may proceed to say) there is little chance of getting anything else passed our democratically elected MPs (which, disingenuously, it would be argued, is the real obstacle to change). So, it may be said to the Committee of Ministers: ‘take your pick’/ ‘to it or leave it’.

    What a dilemma that could be. Might it be argued that a token effort to reform the law (one that does not actually comply) is tantamount to the Committee of Ministers sanctioning a form of non-compliance? (To reiterate, we need to see the detail of the law reform to comment more).

    Finally, an ironic footnote to all this is that the original claimant (Hirst) would not have been able to vote under the new proposed arrangements (as far as I can tell, at least).

  2. Kanstantsin Dzehtsiarou Tue 31 Oct 2017 at 12:56 - Reply

    Ed, thanks very much for this insightful comment which is worthy of an additional blog post. Fiona and I argue in the book that I mentioned in the post that the Court actually created a legitimacy trap for itself with this judgment but this is not a good reason to fail to implement it.

  3. Ed Bates Tue 31 Oct 2017 at 13:07 - Reply

    Looking forward to the book very much!

  4. Ruvi Ziegler Tue 31 Oct 2017 at 14:26 - Reply

    Many thanks, Kanstantsin.
    Just to add to Ed Bates’ point re the details, the Times article referenced prisoners ‘on day release’ which supposedly would apply towards the end of the (under one-year) imprisonment period. It is also reported that the arrangement would be contingent on the person being still on the (annually updated) electoral role – they would have had to previously register, and would not be allowed to re-register whilst in prison. If accurately reported, this means enfranchisement will practically applied to a fraction of the prison population and a minority of those sentenced to less than one year.
    This is quite a far cry from the position of the Joint Committee on the Draft Voting Eligibility (Prisoners) and IMHO could hardly be considered compliance given that it still means that at the time of sentencing disenfranchisement is an automatic consequence of an imprisonment sentence of any length. This is not withstanding (extra)legal considerations that you cogently outline.
    Best wishes,

  5. Kanstantsin Dzehtsiarou Tue 31 Oct 2017 at 14:40 - Reply