It is
my pleasure to introduce another guest blog to you - this time by Andreas von Staden of
the University of Hamburg. He has made an insightful analysis of Strasbourg's prisoner
voting rights cases from the perspective of implementation, building on the findings of his recent monograph. Please find his views below:
Pushing the Envelope: Minimalist Compliance in the UK Prisoner Voting Rights Cases
Andreas von Staden
A long,
arduous journey may soon come to an end—at least for the time being. It is now
over thirteen years ago that the European Court of Human Rights (ECtHR), in the
2005 judgment of Hirst v. The
United Kingdom (no. 2), declared the UK’s blanket ban on prisoner
voting to be disproportional and in violation of Article 3 of Protocol No. 1 to
the European Convention on Human Rights (ECHR). What initially appeared to be a
simple matter of executing a rather straightforward judgment by making
appropriate amendments to the domestic law in question—Section 3 of the
Representation of the People Act 1983—soon turned into a fundamental political dispute
over the proper allocation of competences between the ECtHR and UK, with the
latter arguing that the Court had forayed too much into matters that were more
appropriately decided at the national level. A period in which the UK and other
states stressed the principle of subsidiarity and states’ margin of
appreciation in implementing the ECHR ensued, resulting, inter alia, in the adoption of Protocol No.
15 (2013) which, upon entry into force, will insert an express reference to the margin into
the ECHR’s preamble. Without much fanfare, and with public attention transfixed
by the BREXIT drama, the UK recently adopted a set of remedial measures which
it considers sufficient to close the prisoner voting rights cases, with the
Committee of Ministers seemingly concurring. In this contribution, I argue that
these measures fail to respond adequately to the judgments and that if the
Committee indeed adopts a final resolution on their basis, this would represent
a recalibration of applicable compliance standards and an attempt to override
parts of the Court’s judgments.
Liberal Democracies and the European Court of Human Rights
In a book published last summer titled Strategies of Compliance with the European Court of Human Rights, I had argued that liberal democracies, notwithstanding recurrent
delays and occasional foot-dragging, will generally make an effort eventually to
comply with adverse judgments issued against them. In choosing measures to
comply with a judgment, or set of judgments, however, governmental actors should be expected to remain rational actors and seek to minimize political
and/or material costs or to retain some decision-making authority for
themselves, resulting in what I termed patterns of “minimalist compliance.” I
tested this expectation against empirical evidence drawn from two comprehensive
case studies of two unquestionable liberal democracies, Germany and the United
Kingdom. The evidence from both countries generally appeared to buttress the
theoretical expectations and, by fall 2017, in nearly all cases examined at
least some meaningful steps had been taken to move towards achieving
compliance—save for the prisoner voting rights cases involving the UK. I noted that
“Hirst (no. 2) and its clone cases
are the one set of judgments in which the stipulated compliance pull has …
failed to bring about any, if only minimally compliant, remedial response to
the Court’s decision” (140). For the study as a whole, this led me to conclude that
“[t]he recurrent deferral of adopting legislative measures to remedy the
violation identified in the UK prisoner voting cases … shows … that … voluntary
compliance may reach its limits even in the case of liberal democracies when
the intervention of the Court into domestic law and policy is seen as being
excessively activist and 'illegitimate' to the extent that it appears to usurp
powers of self-government that are believed to be more properly located and
exercised at the national level” (206).
Shortly after the manuscript had been finalized, it transpired that
new developments were afoot in the prisoner voting rights cases and it now
appears that the supervision of their execution by the Committee of Ministers is on the verge of being ended, signaling the recognition that
sufficient compliance has been achieved. But, as will be shown below, the
remedial measures adopted do not address the root cause of the violations
found, namely, their statutory source, but instead appear to be an attempt to
minimize compliance by pushing the envelope as to what are being
considered sufficient remedies in these cases.
In its recent Action Report
on the Hirst (no. 2) group of cases, dated September 1, 2018, the UK informed the Committee of
Ministers that it had implemented three remedial measures to address the
violations of Article 3 of Protocol No. 1 found by the Court and had informed all
prison authorities accordingly in mid-2018. The first two policy changes extend
the right to vote to prisoners who are released on temporary license, normally
in order to be able to take up employment outside of prison, and to prisoners
released on Home Detention Curfew. The UK emphasized that both forms of release
usually apply to prisoners with short prison terms and that the fact that
“prisoners who are in the process of being reintegrated back into society …
can vote” reflected the “proportionality” of the UK’s voting ban regime (paras.
7 & 11), a regime that already provides for the retention of the right to vote for
three other inmate groups (those in prison on remand, for contempt of court,
and for default in paying fines). The third policy change seeks to remedy the failure
to inform those sentenced to prison terms that they will be disenfranchised
during that time; that information is now included in the Warrants of Committal
in England, Wales, and Northern Ireland, and conveyed in different form in
Scotland. In light of these changes, the UK concluded that the “Hirst group of cases can now be closed”
(para. 16).
The UK had announced this selfsame set of measures to the Committee
of Ministers in an Action Plan
in November 2017 to probe whether
the Committee would consider them sufficient for ending its supervision and had
declared that it would implement them if endorsed by the Committee. The
proposed “remedial triad” was the result of an extended period of consultations,
noted in a 2016 Action
Plan, during which the UK expressly sought
to identify options that would enable it to address issues raised in Hirst (no. 2) without a legislative
amendment, an option that continued to be opposed by Parliament. The UK’s
assertion that the identified “administrative measures are the best approach to
credibly, effectively and swiftly address the Hirst group of cases” (2017 Action
Plan, para. 10) apparently had some purchase
in the Committee of Ministers which in a related decision noted the
proposed package “with satisfaction” and “considered that, in light of the wide
margin of appreciation in this area, these measures respond to the European
Court’s judgments in this group of cases.” The Secretariat had made the same assessment. A final
resolution has not yet been adopted, but should, against this backdrop, not be
too long in the making.
But can the conclusion that “these measures respond to the European
Court’s judgments in this group of cases” stand muster in light of the Court’s
findings and ratio decidendi?
Specifically, can there be full compliance without a legislative amendment of
the relevant domestic statutory provision—Section 3 of the Representation of the People Act 1983—which provides that “[a] convicted person during the time that he
is detained in a penal institution in pursuance of his sentence … is legally
incapable of voting at any parliamentary or local government election”?
If one takes the Court’s words seriously, then the above conclusion
appears difficult to sustain. In Hirst (no. 2), the Court had linked the violation of Article 3 of Protocol No. 1
specifically to the “blunt” and “indiscriminate” nature of section 3 of the
1983 Act, given that the above “provision imposes a blanket restriction on all
convicted prisoners in prison … irrespective of the length of their sentence and irrespective of the
nature or gravity of their offence and their individual circumstances” (para. 82 (emphases added in this and the following quotes). In the 2010 pilot judgment of Greens
& M.T., triggered by the UK’s inaction since Hirst (no. 2), the Court’s argument is even more straightforward:
The ECtHR notes that the set of applications at issue in Greens & M.T. was due specifically
to the failure to amend the 1983 Act and to thereby “put an end to the current
incompatibility of the electoral law
with Article 3 of Protocol 1” (paras. 78
& 111). Reaffirming that “the general,
automatic and indiscriminate restriction on the right to vote imposed by section 3 of the 1983 Act
must be seen as falling outside any acceptable margin of appreciation, however wide that margin may be,” the
Court notes that “[i]t is … clear that legislative
amendment is required in order to render the electoral law compatible with
the requirements of the Convention” and that “the respondent State must
introduce legislative proposals to
amend section 3 of the 1983 Act … with a view to the enactment of an electoral law to achieve compliance with the
Court’s judgment in Hirst …” (paras. 110, 112 & 115). In the three sets of clone cases—Firth & Others (2014), McHugh & Others (2015), and Millbank & Others (2016)—the Court subsequently linked the finding of a violation to
the fact that no amendment of Section 3 of 1983 Act had yet occurred, expressly
noting once again in the last judgment that “the statutory ban on prisoners voting in elections is, by reason of its
blanket character, incompatible with Article 3 of Protocol No. 1” (para. 9).
Against this backdrop, I submit that the Court’s position can be restated
as follows:
»
The Court came to the conclusion
that the current regime was incompatible with the Convention and outside of the
UK’s generally wide margin of appreciation in full knowledge of the parameters
of the current regime, i.e., the regaining of voting rights upon release from
prison (including early release) and the continued ability to vote of those in
prison on remand, for contempt of court and for failure to pay fines.
»
The finding of a Convention
violation related expressly to the disproportionality of the blanket voting ban
as it applied to prisoners while in prison, not to the fact that certain
categories of offenders on temporary license or subject to home detention
curfew—and thus no longer physically in prison all of the time—had not been re-enfranchised.
(This also seems to be the position in Scoppola v.
Italy (no. 3)
(2012), para. 96, where the Court argued that “disenfranchisement [that]
affects a group of people generally, automatically and indiscriminately, based
solely on the fact that they are serving
a prison sentence” lacks proportionality).
»
Since the violations caused by the
blanket ban resulted directly from applicable legislation, Section 3 of the
1983 Act, compliance with the judgments requires a change of that legislation.
The UK’s eventual response to the prisoner voting rights judgments can
be understood as an archetypical example of minimalist compliance: As a liberal
democracy, it would have been difficult for the United Kingdom to continue to
resist taking just any remedial measures in these cases and thereby to opt for
open and persistent non-compliance. The fact that the United Kingdom continued
to engage with the Committee of Ministers and the Council of Europe’s
Department for the Supervision of Judgment of the ECtHR to find a solution
suggests that the legal commitment to comply with the Court’s judgments
enshrined in Article 46 (1) ECHR exerted some normative pull effect, given the
Council of Europe’s lack of enforcement means beyond naming-and-shaming (the
effectiveness of which, it should be noted, is ultimately also based on shared norms
and values). At the same time, in light of domestic political majorities being
consistently against enfranchising prisoners, it was to be expected that the UK
would seek to minimize the material and especially political costs of
liberalizing prisoner voting rights, as no UK government would reap any
benefits at the polls for doing so.
Just how minimalist the eventual response turned out to be is still
remarkable. The UK’s remedies provide for only very marginal adjustments to the
current prisoner voting rights regime—The Guardian had estimated in December 2017 that merely about one hundred people
would benefit from the administrative changes—and stay far behind earlier domestic
proposals such as enfranchising those with prison sentences of less than six or
twelve months (see e.g. the 2013 Joint
Committee on the Draft Voting Eligibility (Prisoners) Bill’s report at paras. 2 & 227). What is particularly notable is that the implemented
remedial measures would not have prevented the finding of violations in most of
the cases before the Court which, judging on the basis of the available case
information, concerned applications largely from people actually in prison at
the time of a relevant election from which they were barred, not subject to
temporary license or home detention curfew. Against this background it seems all
but certain that new applications by people with prison sentences at the
shorter end of the spectrum will come to the Court after the next elections to
which the ban applies have been held, giving the ECtHR the opportunity to
clarify its earlier jurisprudence and to assess the UK’s slightly modified
prisoner voting rights regime in its light.
Perhaps even more surprising than the sheer minimalism of the
remedial measures adopted by the UK is the fact that the Committee of Ministers
and the Council of Europe Secretariat endorsed them as being sufficient to achieve
compliance. If the analysis that the current remedial triad would not have
prevented the bulk of the violations found in the Hirst group of cases is correct, then the Committee should have withheld
its endorsement: Rule 6 (2) of its own Rules for the Supervision of the
Execution of Judgments stipulates,
after all, that the Committee, when supervising the execution of judgments, shall
ascertain, inter alia, whether
“general measures have been adopted, preventing
new violations similar to that or those found or putting an end to
continuing violations.” This requirement appears not to have been met. Instead
the Secretariat and Committee highlighted
the Court-affirmed “wide margin of appreciation in this area”—notwithstanding
the fact that the Court, as noted, had already factored in this wide margin in
its findings of violations of the Convention and had, in the context of the
judgments’ execution, linked it specifically to the introduction of
“legislative proposals” (see Greens &
M.T., para. 114)—and both seemed content that the voting ban could now be seen as
no longer being of a blanket nature since some offenders that were formally
subject to a prison sentence could vote again as a result of spending at least
some of their time outside of prison. The Secretariat also referred to the
Court’s statement that “a wide range
of policy alternatives are available to the Government in the present context” (Greens & M.T., para. 114) as support for the current solution,
without addressing, however, how the chosen alternatives relate to the ECtHR’s finding
that the violation had a legislative source and thus implied a legislative
remedy.
At least two (not mutually exclusive)
explanations for the Committee’s (and the Secretariat’s) assessments suggest
themselves. The first is of pragmatic character: The Committee may simply want
to put an end to what Ed Bates has labeled the “prisoner voting saga” and possibly to cut the UK, a
long-time democratic member of the Convention system, some slack, in light of
many much graver ECHR violations by some other states which had begun to
justify their own non-compliance by reference to the UK’s inactivity in the
prisoner voting rights cases. The second explanation is more principled: The
Committee—composed of member state representatives—might want to signal that,
in contrast to the Court’s recurrent foregrounding of a legislative solution, it
considers non-legislative changes sufficient to bring the UK into compliance
with the Convention. This move could be read as intentionally juxtaposing the
Committee’s interpretation of what is required by the Convention to be
compliant with Article 3 of Protocol No. 1 against the Court’s. Given that the governance
arrangement spawned by the ECHR does not provide for the equivalent of legislative
overrides, the Committee might want to use its decision in the Hirst group of cases to signal to the
Court that it considers the latter’s jurisprudence with respect to prisoner
voting rights as too activist and the margin of appreciation granted to states
as too narrow. If this interpretation is correct, then the Committee’s
endorsement of the UK’s remedial triad might be seen as another manifestation
of what Judge Robert Spano had pithily termed the “age of subsidiarity” in which states assert, or seek to reclaim,
greater decision-making freedom for national authorities vis-à-vis international institutions. Notable in this respect is
also the fact that the likely resolution of the prisoner voting rights cases follows on the heels of the 2018 High-level Conference on Reform of the
Convention System which in its Copenhagen Declaration repeatedly emphasized subsidiarity
and the margin of appreciation as core operational principles within the
European human rights system (see paras. 4, 7, 10, 13, 28 & 31).
Whatever the concrete reasons driving
the Committee’s decision, it seems all but certain that ending the supervision
of the Hirst group of cases will end neither the Court’s nor the Committee’s engagement with the issue of prisoner
voting rights in the UK. It is only when the Court addresses new, post-reform
cases that it will become clearer whether the Committee and the UK succeeded in
setting minimalist terms for compliance in this issue area or whether the Court
will find the slightly modified regime still to be in violation of the
Convention. If the latter is the case, then this could set the stage for a possibly
lengthy struggle between the Court and the Committee over the final
interpretive authority with respect to the requirements of compliance within
the European human rights regime.
