Protecting other people’s rights or our own? The UK and the ECHR

Helen Hardman, University of Glasgow

Magna Carta is considered the blueprint for the first human rights conventions: the Universal declaration on Human Rights and the European Convention on Human Rights (ECHR) and, crucially, the UK played a fundamental role in their design.

These treaties were drawn up at the international and European level through the realisation, following two world wars, that rights need protecting across borders to prevent conflict. Contracting parties expressed their shared values in the ECHR for the purpose of maintaining peace in Europe.1 In this vein, many envisaged the ECHR would operate as an inter-state ‘collective pact against totalitarianism’ to be invoked against states only in extreme cases. Others, however, conceived it as a European Bill of Rights.2 Ultimately, the provisions in the ECHR, as first articulated, reflect the pragmatism of compromise between the states parties to devise and launch ‘workable institutions’ rather than theoretical debates about the relationship between the individual and state and society.3 Since then, states have opted to recognise additional rights through ratifying supplementary protocols to the Convention, although not all states have ratified each of these, and the “Court has been cautious not to interpret the Convention contrary to the will of the states.”4

In the context of Magna Carta, the tension between balancing executive powers (over the issue of security) with the public’s civil rights first occurred in 1341 when Edward III enacted a law that granted broader powers of arrest and imprisonment without trial Numerous complaints that the law contravened the right to a fair trial, as articulated in Art.29/39 of Magna Carta, were heeded and the law was repealed .5 In 1369 Edward III introduced a statute which required that every law enacted must be compatible with the rights enshrined in Magna Carta.6

600 years later, the 1998 Human Rights Act updated and renewed the tradition of the Magna Carta7 by incorporating the European Convention into UK law.8 However, since 2004 the European Court has issued a number of judgments to the UK Government that have led to conflict over the issue of parliamentary sovereignty: and a refusal to implement the European Court’s judgments over voting rights for prisoners and review of

1 A. Mowbray (2014), ‘Between the will of the contracting parties and the needs of today’ in E Brems and J. Gerards (eds), Shaping rights in the ECHR: the role of the European Court of Human Rights in determining the scope of human rights Cambridge University Press, pp. 17-37, 20, citing Greer 2006: 56 2 Ibid. 3 Ibid. 4 Ibid, p.36. 5 R. Turner (2003), Magna Carta through the ages, Pearson, pp.122-124. 6Ibid, p. 116. 7Ibid, pp.195-196 8 S. Besson (2008), ‘The reception process in Ireland and the United Kingdom’ in H. Keller and A. Stone Sweet, A Europe of Rights: the impact of the ECHR on national legal systems, Oxford University Press, pp.31-32.

1 sentences to life imprisonment. As Colin Murray (2013) and others have demonstrated, these judgments do not diverge from the UK’s legal traditions on these issues. Nonetheless, in October 2014 the Conservative Party pledged to repeal the UK Human Rights Act and withdraw the UK from its obligations under the European Convention.

This paper investigates how stakeholders in the UK and other Council of Europe states view the UK government’s failure to comply with the European Convention and the implications of the UK’s stance for the Convention system, the UK and other states. The research is based on desk-research and interviews conducted between 2012 and 2015 with representatives from Council of Europe institutions, academics, parliamentarians and NGOs from a variety of states across Europe.

Celebration of Magna Carta and current Human Rights protection in the UK In 2015 the Government arranged a number of events to commemorate 800 years of Magna Carta, because traditionally the UK puts great store by the rule of law, compliance with international law and claims to have a leading role in the world that field. Some in the legal community, however, have remarked that the Government is celebrating this tradition “with one or two blind spots:”9 They consider that the right to a fair trial as first articulated in Magna Carta (and now provided under Article 6 of the ECHR) has come under attack in the UK as the result of cuts to legal aid and higher court fees, essentially making litigation increasingly prohibitive for the majority of people in the UK. The sharp increase in court fees exceed actual court costs10 and are designed to generate revenue, so these are best interpreted as a form of taxation.11 Since 1975, access to justice has been interpreted as an integral part of the right to a fair trial,12 and so these regulations might be the next issue to arrive at the Strasbourg Court.13 The channel of judicial review, also equates with individuals’ right of access to justice as provided under Article 6 of the ECHR.14 Moreover, the courts’ capacity to challenge decisions made by Government through this mechanism is a fundamental basis to the separation of powers and the system of checks and balances between these. This is another mechanism which was threatened in 2014 by a bill introduced by the Minister of Justice and Lord Chancellor, Chris Grayling, to remove judges’ discretion to decide whether a case merited judicial review.15 The bill was rejected by the House of Lords, including a number of Conservative peers, one of whom asserted: “It is unacceptable if we have a system whereby if the government has acted illegally it can’t be brought to account in the courts. The British defence of

9 Interview with * London, February 2015 10 J. Rozenberg (2015), ‘Dramatic increases in court fees causing deep concern, say senior judges’, The Guardian, 19.1.2015 http://www.theguardian.com/law/2015/jan/19/dramatic-increases-court-fees-deep- concern-senior-judges 11 Interview with * London, February 2015 12 Interview with * London, February 2015, See: ECtHR, Golder v UK, 4451/70, 21.2.1975, para. 21 13 Interview with * London, February.2015 14 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, p.17, para.44 15 HC Bill 192, Criminal Justice and Courts Bill

2 freedom is judicial review.” 16 The Parliament’s Joint Committee on Human Rights, the cross-party committee of MPs and peers that scrutinise the compatibility of legislation with the ECHR, strongly criticised the proposed curtailment of judicial review and asserted that the new legal aid regulations will have a chilling effect.17 The committee asserted in their report that reforms introduced by Chris Grayling demonstrated the inherent conflict of interests in the combination of the political role of the Secretary of State for Justice and the duty of the Lord Chancellor to protect the rule of law and the independence of the judiciary since the two roles were merged in 2005.18 “In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice which raises issues which should be considered by a number of parliamentary committees. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.”19

Because of these incursions on the right to a fair trial, a significant proportion of the legal community have objected to the Government’s Magna Carta celebrations,20 which are interpreted as part of a broader narrative by some in Government to justify the repeal of the Human Rights Act and the UK’s withdrawal from the ECHR. The particular issue with which this debate over the withdrawal of the UK from the ECHR began was the Government’s disagreement in 2011 with the European Court’s judgments that the blanket ban on voting for prisoners in the Representation of the People Act 1983 was in breach of the ECHR.21 The sudden standoff between the UK Government and the Council of Europe over this issue was unprecedented.22

16 A. Travis (2014), ‘House of Lords votes against Grayling’s plans to restrict judicial review’ The Guardian, 27.10.2014 http://www.theguardian.com/politics/2014/oct/27/house-of-lords-defeat-chris- grayling-judicial-review-plan 17 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, pp.22-27 18 A. Patrick (2014), ‘Not in our name: Parliamentary committee rejects Government’s case for Judicial Review reform’, UK Human Rights blog, 30.4.2014 http://ukhumanrightsblog.com/2014/04/30/not-in-our-name-parliamentary-committee-rejects- governments-case-for-judicial-review-reform-angela-patrick/ 19 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, p.3. 20 O. Boycott (2015), ‘Justice campaigners propose boycott of Magna Carta anniversary summit’, The Guardian, 1.2.2015 http://www.theguardian.com/law/2015/feb/01/global-law-summit-magna-carta-boycott 21 ECtHR, Hirst v United Kingdom, no.2 (74025/01) 30.3.2004; Greens and M.T. v United Kingdom (60041/08 and 60054/08) 23.11.2010 22 Interview with B. Political Affairs and Democracy Department of the Parliamentary Assembly, Strasbourg, November 2012

3 Incorporation of the ECHR into UK domestic law The UK Government’s track record for compliance with international law is outstanding and rightly world-renowned, as Thorbjørn Jagland the Secretary General of the Council of Europe remarked to members of the UK parliament in 2013.23 In this context, he stressed the vital importance that the UK Government should not refuse to implement the European Court judgments on voting rights for prisoners,24 because no state has ever refused to execute a judgment, and making such a declaration would undermine the Convention system for all states.25

The issue of prisoners voting rights in the context of the ECHR apparently first came to light around 1964 when the Secretary General of the Council of Europe unusually requested all member states to provide a report explaining how their domestic law and administrative practice gave effect to the rights and freedoms guaranteed by the Convention and its first Protocol, as will be discussed later. The correspondence relating to this request indicates the UK Government’s irritation at having to send such documentation and the fact that such a task was particularly onerous for those states, such as the UK, that had not incorporated the ECHR into domestic law: “We complied fully with the Secretary General’s earlier request, even though we were doubtful whether it was a proper use of Article 57 for him to ask governments for an explanation of the way in which they gave effect to each and every provision of the Convention and first protocol – particularly as he apparently intended, on a recurrent basis and as an additional check on the good faith of contracting parties over and above the system of control by the Commission, Committee of Ministers and Court which the Convention establishes. The task was, however, a burdensome one – the more so, of course, for the governments of those states, such as the UK, where the provisions concerned had not been incorporated into domestic law.”26 This request was no doubt purposely made by the then Secretary General to urge the UK Government to take steps to incorporate the ECHR into domestic law. At this time, the Secretary General was from the UK, and a strong advocate of European integration.27 During the 1960s a number of steps were taken to increase the reach of the ECHR in the UK. In 1965 the death penalty was largely abolished (although only completely in 1998)28 and in 1966 the UK Government granted the right of individual petition, which

23 Thorbjørn Jagland’s evidence to Joint Committee on the draft voting eligibility (prisoners) bill Draft voting eligibility (prisoners) bill, 6.11.2013 24 ECtHR, Hirst v United Kingdom, no.2 (74025/01) 30.3.2004; Greens and M.T. v United Kingdom (60041/08 and 60054/08) 23.11.2010 25 Thorbjørn Jagland’s evidence to Joint Committee on the draft voting eligibility (prisoners) bill Draft voting eligibility (prisoners) bill, 6.11.2013 26 Government memorandum, 1966, FCO 41/91, National Archives, Kew. 27 The Secretary General of the Council of Europe is elected by the Committee of Ministers (comprised of the Minister of Foreign Affairs from each of the member states) for a term of 5 years. Since 1951, there have been 2 Secretary Generals from the UK: Peter Smithers (1964-1969) and Terry Davis (2004-2009) 28 Hence in 1999 the UK signed and ratified Protocol 6 of the ECHR, a protocol which was added in 1983. See S. Besson ‘The reception process in Ireland and the United Kingdom’ in H. Keller and A. Stone Sweet, A Europe of Rights: the impact of the ECHR on national legal systems, Oxford University Press, p.37. This time lapse demonstrates an instance where the UK was following rather than setting a trend set.

4 allowed individuals to file applications directly at the European Court.29 By 1968 members of the legal community, including Anthony Lester (now Baron Lester of Herne Hill) were advocating that rights legislation be drawn up in the UK to give the ECHR direct effect in UK law.30 This movement gained momentum during the 1970s and then especially in the1980s when there was a particularly large Conservative majority in Parliament which gave rise to concerns that the Conservative Government could enact practically any legislation that it wished.31 Eventually after many years of various aborted attempts by different parties at drafting a human rights bill, the Labour Party adopted this in their mainstream policy agenda in 1996 which resulted in the 1998 HRA. “By this stage, however, the European Court had found the UK to be in breach of the Convention in more than 50 instances. Due to these factors, it is fair to say that by 1998 the incorporation of the ECHR had become almost inevitable.”32 The UK was one of the last member states of the Council of Europe to incorporate the ECHR into domestic law.33 Most states had already long since rejected the pure model of ‘legislative supremacy’ dominant across Europe precisely because it had allowed the rise of totalitarian governments in the 1930s. They therefore adopted a variety of constitutional models which provided judges to strike down legislation when it conflicted with human rights law.34 While the UK HRA does not provide for judges to strike down legislation, it allows them to make a declaration of incompatibility under section 4 of the Act. In practice, however, this mechanism has proven highly effective because Parliament almost always amends the legislation.35 The proponent of a bill into parliament must then make a declaration as to whether their bill is compatible with human rights standards or not, which once made, is then scrutinised by the Joint Committee on Human Rights, under section 19. All respondents who expressed an opinion on the HRA emphasised that they considered this to be the best model for the UK in that it places responsibility for human rights protection on the legislature, executive and judiciary in a tripartite mechanism. One, however, thought the mechanism does not sufficiently entrench the ECHR in UK law.36 As elsewhere in the world, tensions between the Government and judiciary over the interpretation of human rights and their application in legislation are inevitable, natural and healthy. If these tensions did not exist, if Government were to be happy with every judgment on human right that came from a court, then this would suggest that the human rights framework is not working.37 Similarly, it would be most unusual (and rather worrying) if the UK Government were to be happy with every judgment issued by the Strasbourg Court. Such (healthy) tensions have existed for many decades and new

29 P. Halstead (2014), Unlocking human rights, 2nd edition, Routledge, p.58. At that time the European Commission of Human Rights 30 R. McQuigg (2014), Bills of Rights: a comparative perspective, Intersentia, p.40. 31 Ibid. 32 Ibid., p.43 33 Ibid., p.4 34 Ibid., p.2 35 Ibid., p. 137 36 Interview with **** Edinburgh, March.2015 37 Interview with ** London, February 2015

5 interpretations of the ECHR through the ‘living instrument doctrine’ are also not a new phenomenon.38

The importance of the ECHR for ‘us’ and ‘them’ The General Secretary to the Council of Europe from 1964-1969, Peter Smithers, had previously served as a Conservative MP for the constituency of Winchester before taking up his position at the Council of Europe. He clearly expressed the opinion in Parliament that pressure brought to bear on the UK by the Council of Europe to comply with the ECHR in new ways was a good thing, and that more exacting standards for an exemplary state were to be expected: “The right hon. Gentleman also complained that pressure was being placed upon us to do this, that and the other. Of course there is. In the Continent of Europe we are acknowledged to be much the most coherent and powerful European nation at the present time. No one disputes that, and it is always the prerogative of leaders to be under pressure. Let the right hon. Gentleman ask his own leaders if they are ever under pressure. I am sure that they would not deny it at the present time. If Britain, because of the role she plays in Europe, is under much fiercer pressure at Strasbourg than one of the small Powers or one of the ex-enemy occupied countries, that is only a natural consequence of our very important position in that Assembly.”39 Although the UK’s position in Europe may have diminished somewhat since the 1960s, nonetheless, a number of UK stakeholders consider that the UK still has a particular responsibility to comply with Strasbourg judgments to set an example to other states,40 or “we then bankrupt ourselves morally”41 when looking to challenge serious malpractice elsewhere.42 In this context those liberal democracies which boast a higher standard of human rights protection are those that require more stringent monitoring.43 Moreover, new democracies44 and those states with poorer human rights records, such as Russia45, do make efforts to comply with Strasbourg judgments and their courts try to apply the Convention.46 At the same time, the courts are not independent of the executive, which applies a variety of different levers to influence judges. So for millions of citizens the European Court of Human Rights is for many their only hope of a means to challenge the system and secure this change.47 The fact that they cling to this as a means to ultimately secure justice, proves that it must be effective some of the time. Similarly, in Hungary

38 First articulated in the 1970s in the context of the judgment Tyrer v UK, 25.4.1978, See: A. Mowbray (2014), ‘Between the will of the contracting parties and the needs of today’ in E Brems and J. Gerards (eds), Shaping rights in the ECHR: the role of the European Court of Human Rights in determining the scope of human rights Cambridge University Press, pp. 17-37, p.35. 39 P. Smithers, HC Deb 21 February 1955 vol 537, c. 972 40 Interview with * and ** London, February.2015; **** Edinburgh, March 2015 41 Interview with Hywel Williams, Plaid Cymru MP for Arfon, February 2015 42 Interview with Hywel Williams, * and **, London, February 2015; **** Edinburgh, March 2015 43 Interview with **** Edinburgh, March 2015 44 See, for example, Leach, Hardman and Stephenson (2010), Human Rights Law Review 45 See, for example, Leach et al. (2010), Responding to systemic human rights violations, Intersentia. 46 Interview with * and ** London, February 2015. 47 Interviews with a member of the President’s Council on the development of civil society and human rights; a member of Yabloko; Director of a human rights organisation, Moscow, July 2013

6 since the introduction of the new Constitution and a raft of laws which provide the ruling party FiDeSz with very significant advantages, respondents emphasised the importance of the Strasbourg Court as a channel for them to contest their electoral rights and laws.48

There is additionally a very large body of literature that attests the direct, positive and modernising effects of the Council of Europe on human rights protection in the UK since the 1950s: Strasbourg judgments issued to the UK Government have given rise to a number of ground-breaking changes in the UK over the last few decades that we take for granted today relating, for example, to privacy, discrimination of minority groups, torture and ill-treatment.49 Unfortunately, these changes are not acknowledged in common parlance to have emanated from the Strasbourg Court and so the value of the ECHR and its UK incarnation, the Human Rights Act, are not popularly understood as the source. During the 2013 Consultation on the issue of prisoners voting rights, which was placed very squarely into the more fundamental debate over whether the UK Government should in fact comply with the Strasbourg judgments on voting rights for prisoners, it became apparent to a number of experts who provided evidence that some MPs serving on this committee were not aware that certain fundamental rights had been granted in the UK as a direct result of Strasbourg judgments.50 Evidently this factor proved sufficiently persuasive to allow the Committee, which was initially more in favour of confirming the UK Government’s and Parliament’s stance on ‘flouting’ the judgments on prisoners voting rights, to concede that they should implement the judgment, and ultimately recommend that prisoners serving sentences of less than 12 months should be allowed to vote.51 The fact that in UK political circles few understand the link between the ECHR and changes in practice that are overwhelmingly acknowledged as ‘positive’ demonstrates the extent to which human rights as protected by the ECHR have remained compartmentalised within the law literature, and relegated to the confines of specialist legal media outlets as will be discussed later in this paper. Needless to say, in their time, such changes in law and practice were construed as highly controversial because they were considered to run counter to public opinion and a “strident, populist press”.52

From the perspective of those states, such as the UK, that have a much better track record on human rights, it is not simply a matter of evaluating how Strasbourg judgments have affected UK citizens. The factor that the UK benefits substantially from rights protection more generally across Europe is rarely brought into the equation and yet it “seems so

48 Interviews with ** and Dr Zoltán Pozsar-Szenthiklósy, Hungarian Helsinki Committee, Budapest, May 2014 49 Needless to say, this literature is located within the discipline of law. The human rights literature, although more interdisciplinary in its scope generally, similarly appears more compartmentalised into those publications which are social science-oriented, and which focus more broadly on issues of compliance in the IR literature, whereas those that focus more on the detail of international court judgments tend to be law publications. 50 Interview with Dr Susan Easton, Reader in Law, Brunel University London; * and ** London, February 2015; **** Edinburgh, March 2015 51 Interview with Dr Susan Easton, * and ** London, February 2015; **** Edinburgh, March 2015; see House of Lords, House of Commons (2013), Draft voting eligibility (prisoners) bill, Report, HL paper 103; HC 924, 18.12.2013. 52 Interview with Hywel Williams, London, February 2015

7 obvious in a world where countries are interdependent.”53 Similarly, stakeholders outside the UK have stressed the importance of UK compliance for the sake of the Convention system54, their own state’s security, and for that of Europe as a whole.55 Although politicians were reluctant to confirm that the UK Government’s failure to comply is problematic for other member states, respondents, from the legal community in Hungary, agreed that this was a very serious matter and sent a poor message.56 One respondent said that Hungary appeared to be following the example set by the UK, and that this was evident from the recent increase in anti-Council of Europe sentiment in the media over the last couple of years. During a television interview with a government minister, about a European Court judgment issued to Hungary, the interviewer asserted, “but Hungary does not need to implement this judgment, does it?” And the minister’s response to this question implied that judgments are not binding.57

Prisoners voting rights during the 1960s The issue of prisoners voting rights first arose following the provision of postal voting into the 1948 Representation of the People Act (hereafter RPA), when the UK Government failed to notice that this effectively provided a loophole through which prisoners could register to vote by post and hence the means to do so in the 1950 general election.58 According to the Act of Forfeiture of 1870, only those imprisoned for more serious crimes, ‘felonies’, were to have their right to vote removed, whereas those imprisoned for ‘misdemeanours’ (serving sentences of less than 12 months) in principle could vote, although in practice there was no provision for this. With the introduction of the postal vote, the practical means for those in prison to vote was provided.59 In the 1950s the Conservative Government was embarrassed by their oversight, but failed to take any action and the issue was shelved.60

Apparently, the next juncture at which the issue resurfaced was in 1964 when the Secretary General of the Council of Europe requested a report from the UK Government on how it was implementing the ECHR (as mentioned above). The reports sent a couple of years later, highlighted in particular the significant differences in provisions within the UK.

The reports produced for England and Wales and Northern Ireland, diverged quite considerably from that of Scotland on compliance with Article 3 of Protocol 1 to the Convention (the right to free elections). In Scotland, since the RPA 1948 (which also extended to Scotland), prisoners had been publicly acknowledged to be voting since

53 Interview with * London, February 2015; 54 Interview with Manuel Frick, Representative to the Council of Europe, Ministry of Foreign Affairs, Liechtenstein Vaduz, May.2014 55 Interview with Professor Wilfried Marxer, Vaduz, May.2014. 56 Interviews with * and *** Budapest, May 2014. 57 Interview * Budapest, May 2014 58 Murray (2013), ‘A perfect storm: Parliament and prisoner disenfranchisement’ Parliamentary Affairs, 66, 511-539, 518 59 Ibid. 60 Ibid.

8 1949,61 whereas in England, Wales and Northern Ireland this had been a loophole, which if practiced, was not acknowledged: There was no mention of voting rights in the respective reports of England and Wales62 and Northern Ireland,63 whereas in the report for Scotland, there was explicit reference to the categories of prisoners disenfranchised. Interestingly, according to this report only a small proportion of prisoners were disenfranchised: those convicted and imprisoned for more than 12 months for treason and those found guilty of electoral offences.64 So, in Scotland a significant proportion of prisoners were enfranchised beyond those guilty of ‘misdemeanours’ serving sentences of 12 months, as provided in the Act of Forfeiture. In 1965, during the consultation stage of the drafting of the Criminal Law Act of 1967, the Criminal Law Revision committee recommended that England and Wales follow the law and practice in Scotland where prisoners had the right to vote.65 In 1967 when the Act of Forfeiture was repealed because the distinction between more serious crimes, ‘felonies’ and less serious crimes, ‘misdemeanours’ was abolished, the statutory disenfranchisement of those convicted of felonies also lapsed.66 In conjunction with the acknowledgement in the Criminal Law Revision Committee’s report that prisoners in England and Wales were to be enfranchised, in accordance with the practice in Scotland, this meant that from the time when the Criminal Law Act was enacted in 1967 all prisoners (regardless of crime) had the right to apply for a postal vote.67 So, prisoners across the UK voted in parliamentary by-elections and local government elections from 1968 until 1969. When in 1969 the RPA was amended to disenfranchise prisoners, this ban was evidently simply imposed by the Home Secretary, James Callaghan, without debate in Parliament.68 The ban on prisoners voting was simply replicated in the 1983 RPA and still in force today.69

Following the Hirst no.2 judgment in 2004 and 2005, the UK government quickly set up a timetable to introduce the requisite legislative amendments into the 1983 RPA. This suggested there to be political will for implementation. An alternative explanation might be the fact that there was greater pressure from Strasbourg for action between September 2004 and October 2009, when once again, there was a UK Secretary General of the

61 Ibid., 519 62 “The Representation of the People Act 1949 regulates the holding of elections of members to the House of Commons and provides for the ballot to be secret. The effect of the Parliament Act 1911 is that a general election must be held at least once every 5 years.” Memorandum, The European Convention for the protection of human rights and fundamental freedoms, England and Wales in FCO 41/91, National Archives, Kew. 63 The article is articulated in the same way as in England and Wales, without reference to voting rights. See: Memorandum, The European Convention for the protection of human rights and fundamental freedoms, Northern Ireland, FCO 41/91, National Archives, Kew. 64 “The only qualifications required in order to vote are that a person must 1) be 21 years of age; 2) be a British subject; 3) not be subject to any legal incapacity (i.e. aliens, infants, peers (except Irish), persons convicted and imprisoned for treason for more than 12 months, a person who has been reported personally guilty by an election court) and 4) be resident in the constituency on the qualifying date.” Annex 3: Scotland, FCO 41/91, National Archives, Kew. 65 Murray (2013), ‘A perfect storm: Parliament and prisoner disenfranchisement’ Parliamentary Affairs, 66, 511-539, 519. 66 Ibid. 67 Ibid., p. 520 68 Ibid. 69 Ibid.

9 Council of Europe, Terry Davis. The UK Government acknowledged the European Court’s finding a violation which was in turn confirmed by the Scottish Court of Session in the judgment of Smith v Scott, 2007, when the Secretary of State for Scotland, Douglas Alexander conveyed to the Court of Session that the Government fully accepted the European Court’s decision in Hirst no.2 and declared the disenfranchisement of prisoners (as articulated in Article 3 of the 1983 RPA) to be incompatible with the ECHR.70 By inference, therefore, the UK Government had admitted there to be an incompatibility with the HRA. Although the Court of Session decided not to make a declaration of incompatibility with the Human Rights Act,71 it chose to make such a declaration under the Scotland Act72 and noted that implementation of the Hirst judgment according to the timetable published by the Government had ‘slipped badly’.73

The 2011 backbench debate: the procedure In response to Strasbourg’s judgment of Greens and M.T. in 2010, the UK Parliament addressed the issue at a backbench debate. The motion to flout the original Strasbourg judgment in Hirst no.2 (2004) on granting prisoners the right to vote74 was unusual in that it was bipartisan: David Davis as the senior Conservative MP and Jack Straw as a senior Labour MP “both uniting in their hostility to the European Court of Human Rights.”75 This particular backbench debate procedure was developed in 2010, in the wake of coalition government, to provide an opportunity for backbenchers to have more say and more power in raising issues. The debate is just an expression of opinion on an issue and not a mandate to the Government to change the law. For that purpose it can be a very useful and helpful way to publicise issues that might otherwise not be raised in parliament.76 Similarly, in the context of coalition, it provided an opportunity for the Liberal Democrats to express contrary opinions to those of the coalition government.77 However, using the device of the free vote through the backbench procedure gave the impression of freedom while at the same time ensuring that the vote went a certain way. Allowing a free vote ‘nailed the attention’ on each MP’s individual decision on the issue, so that MPs could not say that they had been told to vote in a particular way by their party. In the context of the tide of popular opinion and the press, giving a free vote on the issue essentially ensured that people voted the way the government wanted to without the government appearing ‘oppressive in any sense’.78 Moreover, the way in which the

70 Smith v Scott SC 345 2007, paras 8-9. My thanks to Susan Easton and others for identifying this 71 Ibid. para. 57 72 Ibid, para. 56 73 Ibid. para. 43 74 “That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.” 10 February, 2011. 75 Interview with Dr Denis MacShane, former Minister for Europe, served on the Parliamentary Assembly of the Council of Europe 2006-2010, former Labour MP for Rotherham London, February 2015 76 Interview with Dr Denis MacShane, and *** London, February 2015 77 Interview with Hywel Williams, London, February 2015 78 Ibid

10 motion was brought was ‘counterproductive’79 this was ‘use of a procedure simply to beat up on Europe,’80 and because of this, the Strasbourg Court “received a lot of bashing.”81

The conflation of the issue of prisoners voting and whether or not the UK should defy the Strasbourg judgment of Greens and M.T. strengthened the position of the proponents of the motion because it helped to construe the image of both “wicked prisoners and wicked Europeans at a time of anti-European hysteria.”82 If the motion had been proposed in a different way then the debate would have been much calmer, but when any issue is labelled as “emanating from Europe then it produces a kind of pavlovian anti-European reaction.”83 The debate was thus viewed as, “the Government trying to get Parliament to provide backing for what appeared to be Government policy.”84

Why so few MPs voted against the motion: Although the quality of speeches delivered at the debate was ‘high’ MPs were not surprised by the low number who voted against the motion to defy Strasbourg. One explained that there was a ‘campaign’ beforehand, and therefore a number of MPs committed to vote in favour of flouting the Strasbourg judgment, and yet afterwards they said that they would have voted otherwise had they heard the arguments for enfranchising prisoners.85 Another suggested that the number of individuals present at the debate was much lower than would normally be expected primarily because the debate was on a Thursday, which is often when MPs return to their constituencies.86 “The reason why so few MPs were against the motion was because they either hadn’t thought about it, or they weren’t interested or they didn’t dare.”87

Respondents said that those with some experience of the penal industry or the criminal justice system, either personally or through their work were more likely to be in favour of prisoners’ voting rights. For example, two attested to having spent a short time in prison for acts of civil disobedience in the 1960s and 1980s respectively. The first had been imprisoned for removing road signage in protest at unfair language laws in Wales (in which prominent members of the intellectual elite also took part), which have since as a result been repealed. Those committing such civil offenses would present themselves to police, which resulted in fines, which they then refused to pay and which subsequently resulted in prison sentences.88 Another, as a BBC journalist in Poland reporting on the 1980s Solidarity demonstrations was briefly imprisoned for participating in an illegal

79 Interview with Sir Peter Bottomley, Conservative MP for Worthing West, London, February.2015 80 Interview with Dr Denis MacShane, London, February 2015 81 Interview with *** London, February 2015 82 Interview with Hywel Williams, London, February.2015, although as he noted, this anti-European hysteria has further grown in the UK since then. 83 Interview with Dr Denis MacShane, London February 2015 84 Interview with Sir Peter Bottomley, London, February.2015 85 Interview with Sir Peter Bottomley, February 2015 86 Interview with *** London, February 2015 87 Interview with Sir Peter Bottomley, February 2015 88 Interview with Hywel Williams, February 2015

11 demonstration.89 A third was a criminal lawyer and therefore had a number of years’ experience representing offenders and visiting them in prison.90

This also raises the issue of whether or not MPs should be in a position to take an enlightened and liberal approach which may diverge, perhaps, from the views of their constituents. One stated that ‘there is a role for leadership in this matter’ especially in the context of human rights, where the court of public opinion has at recent times, advocated the reinstatement, for example, of capital punishment.91 Another respondent pointed out that such divergence of an MP’s stance on the matter with the majority opinion in their constituency was also apparent among those voting in favour of the motion to defy Strasbourg: one member of the Joint Select Committee on the 2013 consultation: the MP Steve Brine, adopted a particularly strong, hardline view that prisoners should not be enfranchised and yet his constituency of Winchester is very unlikely to take a similar view on this issue because it is composed of a largely liberal, middle class and academic population. Additionally, a good number of Winchester constituents work in the penal industry which is a group that overwhelmingly supports the enfranchisement of prisoners. So, this particular mismatch of views between the MP and his constituency may be best understood as driven by a desire to keep in with the leadership and for the sake of political advancement.92

Why the Government has failed to implement the judgment One MP suggested that, generally, the speed with which consultation processes lead to legislative action can have a long gestation period, as the example of the 1997 joint select committee which led to the Mental Health Act in 2006 demonstrates.93 This process lasted around 9 years, which makes the lapse of 11 years since the first Hirst judgment on prisoners’ voting rights in 2004 and the different attempts at consultation since then appear more reasonable. Nonetheless, both main parties have adopted a very strong stance on the issue of prisoner voting rights. Why the Labour and then Conservative government both ultimately adopted the same stance on prisoners voting was explained in a variety of different ways. Governments for some reason think it is popular that prisoners be disenfranchised,94 and all parties now see this as a poisoned chalice.95 Both main parties converged on the policy of being tough on crime,96 which has successively led to both parties trying to outbid each other in this domain.97 As a result, there has been a marked increase in the number of people put in prison since the early 1990s. Many respondents expressed concern at the very substantial increase in the prison population

89 Interview with Dr Denis MacShane, February 2015 90 Interview with *** London, February.2015 91 Interview with Hywel Williams, February 2015 92 Interview with *****February 2015. 93 Interview with Hywel Williams, London, February 2015 94 Interview with Sir Peter Bottomley, London, February 2015 95 Interview with Dr Susan Easton, London, February 2015 96 Interview with Hywel Williams, Dr Denis MacShane, * and ** London, February 2015 97 Interview with Dr Denis MacShane London, February 2015

12 since the 1990s, which has almost doubled from 44,246 in 199398 to 85,564 in 2015.99 The sharp increase began during Michael Howard’s term of office as Home Secretary in the Conservative government of John Major100 during which time the prison population rose exponentially by 39% to 61,467 over the 4 year period 1993 to 1997,101 which is an average annual rise of 10% each year. Between 1997 and 2008 the prison population steadily increased a further 35%, although over an 11 year period the average annual rate of growth had declined to 3.2 %.102 Between 2008 and 2015 the increase has been more modest at an average rate of 0.4% each year.103 The UK Ministry of Justice has explained the sharp increase as the result of legislative and policy changes which have both lengthened sentences for certain crimes and also increased the likelihood of a prison term for breach of a non-custodial sentence. This report stated as a secondary reason that more serious crimes are being committed.104

There was a universal concern among respondents that too many people are given custodial sentences in the UK. The focus on punishment rather than rehabilitation is considered unhelpful in terms of combating recidivism and also with respect to human rights. There seems to be a strong awareness among those that voted against the motion to defy the Strasbourg judgment that disenfranchising prisoners does not act as a deterrent against committing crime (except, perhaps in the context of those that have committed an election-related offence) and therefore an understanding that this particular penalty is disproportionate in its aims105, in the same vein as the Strasbourg Court’s judgment which articulated that when sentenced to prison, an individual should not forfeit any other fundamental rights, except that of liberty.106 This argument is not new to Parliament, however, as it was proposed in 1979, by the MP Clive Soley who unsuccessfully petitioned the Home Secretary, Leon Brittan, on the issue of voting for prisoners “Does not the Minister agree that the deprivation of liberty is sufficient punishment in itself and that prisoners should not be deprived of other human rights?”107 The fact that the UK has the highest incarceration rate in Western Europe (on average twice the number per capita of the population108) suggests that UK courts rely too often on custodial sentencing. Moreover, there is a high rate of reoffending and the ‘negative attitude towards prisoners voting reflects a negative attitude towards prisoners

98 UK Ministry of Justice, Story of the prison population 1993-2012, England and Wales, January 2013. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/218185/story-prison- population.pdf 99 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/409824/prison-population- figures-6-march-2015.xls 100 Interview with * London, Febuary.2015 101 The prison population rose to 61,467 in 1997, see, Gavin Berman and Aliyah Dar (2013), House of Commons briefing paper, Prison population statistics, SN/SG/4334, p.22 102 These figures are 61,467 for 1997 and 85,564 for 2015. 103 These figures are 83,194 in 2008 and 85,564 in 2015. 104 UK Ministry of Justice, Story of the prison population 1993-2012, England and Wales, January 2013. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/218185/story-prison- population.pdf p.21 105 Interviews with Hywel Williams, Dr Denis MacShane, Dr Susan Easton, London, February 2015 106 Hirst v the United Kingdom no.2 (no. 74025/1), 30.3.2004, para. 31. 107 HC Deb 15 November 1979 vol 973 c 1493 108 Around 148 per 100,000 compared with 70 or 80 in other western European states.

13 generally.’109 This practice results in a substantial financial and social burden on the state.110 In contrast, in Scandinavian countries, the justice system prefers a more rehabilitative approach, with less custodial sentencing, which in turn results in less reoffending.111

Another explanation was that the issue of prisoners voting fundamentally offends Government and Parliament because this affects the means by which they are appointed to office. Essentially, MPs are horrified that they may be accountable to prisoners.112 The most widespread explanation in the press was described in more general terms as the desire to assert the right to ‘parliamentary sovereignty’ over international law. Most respondents attested that the persona of the original litigant, John Hirst, who had been convicted of manslaughter of his landlady with an axe and then won his case in Strasbourg on the issue, did not help. Others stressed, however, that the Government had another agenda, namely to pick a fight with Europe more generally and purposely stoke anti-European sentiment among the public to justify exit from the EU,113 and the Council of Europe.114 Easy resolution on the issue of prisoners voting rights would remove one of the most convincing arguments for withdrawal from the ECHR and significantly diminish the impact of the anti-human rights narrative.115 This appears the most plausible of explanations, simply because the European Court has since issued judgments on a large number of cases of voting rights for prisoners in which the European Court found a violation of Article 3 of Protocol 1 to the ECHR, but refused the right to compensation for this.116 Although a very conciliatory move on the part of Strasbourg, this was recounted in most of the UK press as a renewed offensive by the Court. Moreover, the reportage focused on random, but well-known ‘evil’ murderers and terrorists, whom they named (but who have not as far as I know lodged cases), that could in principle get the right to vote.117 Since the Strasbourg Court is not pressing for universal voting for all prisoners118 (only for some amendment to qualify the ban on voting for all prisoners), this reportage is, to say the least, mischievous. As the literature attests, and as respondents all confirmed, the factor of the ‘fatal combination’ of Europe and prisoners made the issue particularly unwelcome and resulted in a number of strong negative reactions during the debate itself and more broadly in the media.

109 Interview with Dr Susan Easton, London, February.2015 110 Interview with Dr Susan Easton, Dr Denis MacShane; Hywel Williams, London, February 2015 111 Interview with Dr Susan Easton, .London, February2015 112 Interviews with Dr Susan Easton, * London, February.2015; **** Edinburgh, March 2015 113 Interview with Dr Denis MacShane, London, February 2015; 114 Interviews with * and ** London, February 2015 115 Interview with ** London, February 2015 116 Firth and others v UK, 47784/09, 47806/09, 47812/09, 47818/09, 47829/09, 49001/09, 49007/09, 49018/09, 49033/09 and 49036/09, 12.8.2014; McHugh and 1014 others v UK 51987/08, 10.2.2015 117 See for example, Fury as Prisoners get the right to vote, Daily Star, 10.2.2015 http://www.dailystar.co.uk/news/latest-news/424946/Prisoner-s-could-get-right-to-vote-rule-European- Human-Rights-court 118 Although much of the expert evidence provided to the Parliamentary consultation on the matter in 2013 suggests that the majority of these experts consider that voting rights for all prisoners would be beneficial. Nonetheless, given the strong stance that the Government has taken the proposition of those serving sentences of less than 12 months would be a good start.

14 Factor of the Media There were a variety of views on the extent to which the media has driven both public opinion on the issue and also how far the media have shaped Parliamentary views and also resulted in the Government’s inaction on the issue. Two MPs considered that fear of the media did shape how parliamentarians responded at the backbench debate:“ I think the fear of the press is a significant one, and in that sense they are usurping the role of the parliament. The court of public opinion is not the Chamber of Commons but the columns of the Daily Mail.”119 One MP who was castigated by the Daily Mail for a speech at the backbench debate was also targeted at a personal level.120 One stressed the symbiotic relationship between politicians and the media but that “the press can only indulge in ugly politics such as on race and immigration, prisons or foreigners if they can quote senior and important politicians endorsing those perspectives… and there are plenty of rent-a-quote MPs willing to do this, especially on prisoners voting rights.”121 Ultimately, the Government could have amended the legislation, had they approached the issue in a sensible way: “I don’t think the media matters terribly on this…if any Home Secretary said we want people in prison to be thinking of others, we want prisoners to vote, certainly in their last year in prison…then there could be a rational debate.”122

There was unanimity among respondents that the issue of prisoners voting rights had been unduly polarised by the media. Many considered that the emotive and distorted way that the issue was covered had impacted upon public opinion on the matter.123 Others similarly attested that the media generally portrays a rather distorted image of issues relating to prisoners, and that specialist articles that accurately convey what prisoners are like, the type of offences they are convicted of and prison conditions are only really to be found in specialist articles buried in broadsheet newspapers.124 In part, some considered that this was the result of confusion over the various European institutions: “getting the media to understand the difference between the EU and the Council of Europe was ‘an uphill struggle to say the least”.125 One respondent suggested that given the number of journalists recently imprisoned for phone-hacking, reportage on criminals and prisons might become more balanced and serious.126 Others remarked that all issues relating to human rights are poorly covered in the UK media.127 One stakeholder stated that the majority of the press consistently and purposely distorts human rights issues in their reportage because they have a vested interest in trying to shape public opinion against the ECHR and the HRA.128 These outlets are clearly advocating the repeal of the HRA,129

119 Interview with Hywel Williams, London, February 2015 120 Interview with *** London, February 2015 121 Interview with Dr Denis MacShane, London, February 2015 122 Interview with Sir Peter Bottomley, London, February 2015 123 Interviews with *, ** and ***, London, February 2015 124 Interviews with Dr Denis MacShane, Sir Peter Bottomley, Hywel Williams, Dr Susan Easton, London, February 2015 125 Interview with Hywel Williams, London, February 2015 126 Interview with Dr Denis MacShane, London, February 2015 127 Interview with Hywel Williams, * and ** London, February.2015; **** Edinburgh, March 2015. This also supports Adam Wagner’s and Joshua Rozenberg’s evidence to the 2013 parliamentary consultation on the issue. 128 Interview with ** London, February 2015 129 Interview with * and ** London, February 2015

15 and even withdrawal from the ECHR because they believe that this would reduce the constraints imposed on them by Article 8, the protection of privacy, and allow them to source their news stories more freely.130 This open hostility in some sections of the press and their campaign to repeal the HRA to further their own interests is well-attested in the literature, also.131 Reference to human rights, Strasbourg judgments, the ECHR or the HRA only appear in a negative context when rights for an unpopular minority (immigrants, prisoners etc.) are the focus of attention.132 In those instances where the story would be popularly construed as positive in terms, such as the protection of data, privacy (such as phone-hacking or surveillance), ill-treatment of people in care homes or hospitals, standards for the disabled, such reference to ‘human’ rights are conspicuously absent.133 The media narrative is thus clearly set in the terms of ‘us’ and ‘them’, where the ECHR only grants and protects such rights for ‘them’134 and therefore the HRA is depicted as a “rogues’ charter… whose chief beneficiaries are criminals and wrongdoers”135

The UK Delegation to the Parliamentary Assembly since 2010 Such attacks in the populist press appear culturally to be in tune with the debating style in the UK Parliament which promotes bullying behaviour in the form of personal or gratuitously rude repartee with political opponents, barracking and hand gestures that are not tolerated elsewhere more generally in the workplace.136 One respondent in Strasbourg, from the Secretariat of the Parliamentary Assembly of the Council of Europe, expressed embarrassment and concern at the way in which some of the new cohort of MPs to the UK delegation at PACE since 2010 had adopted the same rude and combative manner in raising the issue of prisoners voting rights in Strasbourg since the European Court’s judgment in Greens and MT judgment of 2010. This respondent noted that there had been a palpable change in attitude among the UK delegation to the Parliamentary Assembly since the general election of 2010. Although delegations from the various member states’ legislatures to the Parliamentary Assembly tend to be much more open- minded than their colleagues at home about the need to amend domestic legislation and practices in accordance with the Convention, the current UK delegation’s approach is not in keeping with the aims and spirit of the Council of Europe and represents a significant departure from that of previous UK delegations.137

130 Interview with ** London, February 2015 131 See R. McQuigg (2014), Bills of Rights: a comparative perspective, Intersentia, p.170; Lord Irvine of Lairg (2012), ‘A British interpretation of Convention Rights’ Public Law, 237; M. Amos (2009), ‘Problems with the HRA 1998 and how to remedy them: is a bill of rights the answer? Modern Law Review, 72. 132 A. Wagner (2014), ‘The Monstering of Human Rights’ https://adam1cor.files.wordpress.com/2014/09/the-monstering-of-human-rights-adam-wagner-2014.pdf 133 Interview with ** London, February 2015 134 Interview with ** and Hywel Williams, London February 2015 135 R. McQuigg (2014), Bills of Rights: a comparative perspective, Intersentia p.170 136 Zoe Williams (2015), ‘Bring on the sin bin for politicians whose noise betrays contempt’ The Observer, 1.3.2015, http://www.theguardian.com/commentisfree/2015/mar/01/mps-barracking-territorialism-house- of-commons 137 Author’s interview C. Secretariat of the Parliamentary Assembly, Strasbourg, 11.2012

16 This delegation has on numerous occasions raised the issue of prisoners’ voting rights, often out of context and in a belligerent way. One explanation for this was that the new cohort of Conservatives in the delegation knew nothing about the work of the Council of Europe except the controversy over prisoners’ voting rights, and so in their maiden- speeches they felt the need to convey the strong message that they would not give way on this issue.138 They did not perceive that it was inappropriate for them, in the context of their duties at the Parliamentary Assembly, and within the culture of the Council of Europe, to voice such views in this manner and their attitude has remained fixed.139 Whereas previous delegations had understood that it was their duty to protect the interests of all of Europe in this context, the new UK delegation persistently focused exclusively on those of the UK, and this came to influence the attitudes of long-standing members of the UK delegation who had previously been very cooperative with the Parliamentary Assembly.140 By 2011, the issue had become so politicised in the UK that the delegation felt that it had to mirror the strong stance in the House of Commons, at the expense of their commitment to the European Convention.141

During the first meeting after the 2010 judgment, in January 2011, one of the UK delegation said that the European Court’s judgment was ‘wrong’ and that the Court was ‘riding its luck’ in extending its powers through “that sort of judgment”, which “creatively – some would say mischievously – extends the reach of the original protocols, while ignoring sovereign law.”142 The “sort of judgment” referred to in this context is the pilot judgment procedure, which apparently the UK had not objected to previously, when it had been applied on numerous occasions to other member states, during the previous 7 years. This sentiment was reiterated by another delegate, who questioned whether the Court had the right to make this kind of judgment, which he argued was stirring up resentment across Council of Europe member states. Moreover, as one of the ‘parents’ of the European Court, he urged that the UK and other founding members take action to put a stop to this kind of interference by the Court.143 This position was repeated at the next session in June 2011,144 and again in January 2012, when one delegate led an onslaught against the Court, described its judgments as ‘bizarre’ and demanded that it ‘stop trying to usurp democracy.’ 145 At this meeting, the UK Prime Minister, David Cameron, maintained that all states must implement European Court judgments in accordance with the rule of law.146 Ironically, he remarked that the meeting was much more civilised than Prime Minister’s questions in the UK Parliament.147 During the following session in April, a member of the UK delegation insulted the European Court as ‘jesters’ and said

138 Ibid. 139 Ibid. 140 Ibid. 141 Ibid. 142 Parliamentary Assembly, Second Session, Sixth Sitting, 26.1.2011, 3 pm, Claire Perry 143 Ibid., Brian Binley 144 Parliamentary Assembly, Third Session, Nineteenth Sitting, 20.6.2011, 11.30 a.m., Mike Hancock; Third Session, Twenty-Fifth sitting, 23.6.2011, 10.a.m., Brian Binley; Christopher Chope. 145 Parliamentary Assembly, First Session, Fourth Sitting, 24.1.2012, 3.30 pm, Brian Binley; Roger Gale. 146 In spite of having clearly expressed to the UK Parliament at Prime Minister’s questions on 3 November 2010 that the notion of giving any prisoner the right to vote made him “feel physically ill” 147 Parliamentary Assembly, First Session, Sixth Sitting, 25.1.2012, 3.30, David Cameron.

17 that he wished a twenty-first century Henry VIII would withdraw the UK from the Council of Europe for allowing the Court to meddle in domestic affairs.148 Although there have been a couple of instances where UK delegates have argued in favour of lifting the blanket ban, these individuals are in a very small minority.149

UK judges at the Court have consistently voted with the majority in finding a violation of Article 3 of Protocol 1 to the Convention in the blanket ban on prisoners voting rights,150 so again, there appears to be strong evidence of support among the UK permanent delegation to the Council of Europe on this issue, which rather debunks the myth that this is something imposed by ‘European’ judges onto the UK. Moreover, the monitoring system on the execution of judgments is diplomatically managed through negotiations between member states and the Committee of Ministers, not by the European Court so as to accommodate those instances where implementation is difficult or politically sensitive. There is no compliance mechanism per se to enforce Court judgments. The Council of Europe therefore depends on internal actors, such as parliamentary opposition and civil society in member states to pick up on their recommendations and put pressure on their own government to act.151

Why civil society in the UK has been relatively silent on the issue While NGOs that focus on prisoners rights, such as the Howard League for Penal Reform, Unlock and the Prison Reform Trust have been fairly vocal about the issue,152 and the latter lobbied parliament before the backbench debate in 2011153 there has not been the expected pressure from civil society and NGOs in the UK to urge the Government to comply with the Strasbourg judgments on prisoners voting rights.154 There are a variety of explanations for this. A number of respondents suggested that such organisations are selective in how they use their limited resources, and so they will be more likely to choose causes where they think they have some chance of success and in view of the strong stance taken by the Conservative and Labour parties on the issue, they are likely to have felt that this would be ineffective.155 Another pointed out that there are much more serious and fundamental issues in terms of prisoners’ welfare that take priority over voting rights, such as segregation, overcrowding and the imprisonment of children.156 What a range of NGOs have done is to try to counter the misinformation in the media by trying to clarify the issue, explain the nature of the judgments, the

148 Parliamentary Assembly, Second Session, Eleventh Sitting, 23.4.2012, 3 p.m.; David Davies. 149 Ibid., Michael Connarty; Parliamentary Assembly, Fourth Session, Thirty-Third Sitting, 5.10.2011, 3 pm., Lord Anderson. 150 Judge Nicolas Bratza, in Hirst no.2 (and also at the Grand Chamber judgment in 2005); Greens and M.T. in 2010 and since then Judge Paul Mahoney in Firth et al 2014. 151 Interview B., Political Affairs and Democracy Department of the Parliamentary Assembly, Strasbourg November 2012 152 ADD IN 153 Interview with Dr Denis MacShane, London, February 2015 154 Interview with B., Political Affairs and Democracy Department of the Parliamentary Assembly, Strasbourg, November 2012 155 Interviews with * and ** London, February 2015; **** Edinburgh, March 2015 156 Interview with Dr Susan Easton, London, February 2015

18 Convention system and what the Court requires.157 A more cynical and worrying explanation was that NGOs receive core funding from the Government, and if they advocate unwelcome issues such as prisoners voting rights, then they will not receive such funding in future.158 In 2015 NGOs have been targeted by the Government because of their successful interventions over the 2014 legislation on judicial review. The new provisions will effectively prevent similar action in the future.159

Prisoners voting rights in comparative perspective The vast majority of the 47 Council of Europe states provide some prisoners with the right to vote. Those states that were identified in a UK parliamentary report in 2012 as maintaining a blanket ban on voting rights were: Andorra, Armenia, Bulgaria, Estonia, Georgia, Hungary, San Marino, Russia and the UK, and that the Liechtenstein parliament was considering a bill to introduce voting rights for some prisoners.160 Since then, the Liechtenstein Government amended the law on prisoners voting rights.161 Some of these states, do however, in principle, grant certain prisoners the right to vote: According to Andorran law those serving prison sentences are to lose the right to vote only by the decision of a court162 and the Georgian law on elections provides those serving sentences for a ‘misdemeanour’ the right to vote.163 In San Marino the law provides voting rights for those prisoners serving sentences of less than a year who have not committed political crimes.164 So, at time of writing, only Armenia, Bulgaria, Estonia, Hungary, Russia and the UK retain a blanket ban on prisoners’ voting, and the European Court has issued judgments to the Russian and UK governments finding a violation of Article 3 of Protocol 1 to the Convention in cases issuing from these states.165 An application from Hungary was filed at the Court in 2008. Therefore 87% of all Council of Europe states have some provision for prisoners to vote, which demonstrates that this can commonly be

157 Interview with ** London February 2015 158 Interview with **** Edinburgh, March 2015 159 Ibid. 160 I. White (2013), Prisoners’ voting rights, House of Commons Library, SN/PC/01764; I. White and A. Home (2014) Prisoners’ voting rights, House of Commons Library, SN/PC/01764, Appendix (last updated August 2014). 161 H. Hardman 2014 ‘How important is public debate to the process of states’ compliance with international treaties? A case study of electoral reform in the context of the European Convention on Human Rights (ECHR)’, UACES Conference paper. 162 United Nations. General Assembly (2010), Human Rights Council on the working group of the periodic universal review 9th session, Geneva, 1-12 November, 2010, National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1: Andorra, A/HRC/WG.6/9/AND/1, p.13 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/155/48/PDF/G1015548.pdf?OpenElement 163 Georgia. Organic law of Georgia: Election Code of Georgia adopted 27 December 2011, translated by IFES Georgia, Art. 3 a.c. http://transparency.ge/sites/default/files/August%202012,%20Election_Code_of_Georgia_EN_- _codified.pdf 164 San Marino. Legge 31 gennaio 1996 n.6 (pubblicata il 7 febbraio 1996) Legge Elettorale Noi Capitani Reggenti la Serenissima Repubblica di San Marino Promulghiamo e mandiamo a pubblicare la seguente legge approvata dal Consiglio Grande e Generale nella seduta del 31 gennaio 1996, Art.2 (1) b-d. http://www.consigliograndeegenerale.sm/on-line/home/archivio-leggi-decreti-e- regolamenti/scheda17014400.html 165 Anchugov and Gladkov v. Russia (no. 11157/04 and no. 15162/05) 4.7.2013

19 accepted as a European standard.166 Originally, when the blanket ban was introduced in 1969, little thought was given to justifying it in terms of punishment. A system akin to others on the continent where a judge decides at time of sentencing whether or not such rights should be forfeited would have been a good solution.167 In 2000, the UK introduced an amendment to the RPA to allow all prisoners on remand the right to vote. However, once convicted and serving a sentence this right is removed. Outside Europe from 1999-2002 there was a spate of judgments in South Africa, Canada and Australia,168 which resulted in all convicted prisoners being granted the right to vote in South Africa169 and Canada170, and those sentenced to less than 3 years being enfranchised in Australia.171 This evidently added momentum to the debate more generally172 “did not impair the integrity of the ballot box” in these states173 and could be interpreted as the impetus for the 2004 Hirst judgment which supported a more liberal approach on the issue.174 Moreover, Ireland amended the law according in response to the Hirst v UK judgment of 2004 in time for the 2007 election.175 It is clear, therefore, that the UK’s stance on this issue is not only out of step with the vast majority of liberal democracies, but also with its own previous laws and practices during the 1960s.176

Conclusions Although prisoners voting rights may not be a burning issue for the vast majority of UK citizens (and perhaps understandably so), the implications of leaving the Convention system should be clarified. The proposed Conservative solution, which they published under the title ‘Human Rights protection in the UK’177, would be that the UK will be that judgments would no longer be binding and would be only ‘advisory’ in nature. This has been described as a nonsense and the proposal ‘legally illiterate’178, although they have a

166 Interview with ** London, February 2015 167 Interview with **** Edinburgh, March 2015 168 S. Easton (2006), ‘Electing the electorate: the problem of prisoner disenfranchisement’ Modern Law Review, 69:3, pp.443-61; pp. 448-449. 169 Liberty (2007), Liberty’s Response to the Department for Constitutional Affairs’ Consultation on the Voting Rights of Convicted Prisoners Detained within the United Kingdom, March 2007, p.5 https://www.liberty-human-rights.org.uk/sites/default/files/prisoners-voting-rights.pdf 170 Elections Canada, A history of the vote in Canada, http://www.elections.ca/content.aspx?section=res&dir=his&document=chap4&lang=e 171 Australian Human Rights Commission, Prisoners’ rights https://www.humanrights.gov.au/our- work/rights-and-freedoms/projects/prisoners-rights 172 Interview with Dr Susan Easton, London. February 2015 173 S. Easton (2006), ‘Electing the electorate: the problem of prisoner disenfranchisement’ Modern Law Review, 69:3, pp.443-6, p.449 174 Interview with Dr Susan Easton, London, February 2015 175 Dr Susan Easton, evidence submitted to the Joint Committee on the draft voting eligibility (prisoners) bill Draft voting eligibility (prisoners) bill, 2013. 176 C. Murray (2013), ‘A perfect storm’, Parliamentary Affairs 177 Conservative Party (2014), Protecting human rights in the UK: The Conservatives’ proposals for changing Britain’s human rights laws https://s3.amazonaws.com/s3.documentcloud.org/documents/1308198/protecting-human-rights-in-the- uk.pdf 178 Mark Elliott (2014), ‘My analysis of the Conservative Party’s proposals for a British Bill of Rights’, Public Law for everyone http://publiclawforeveryone.com/2014/10/03/my-analysis-of-the-conservative-

20 number of lawyers working on this project, including the former Home Secretary, from 1993-1997, Michael Howard.179 To make such a fundamental change to the ECHR would require the consent of all 47 signatories to the Convention, which would be very difficult to achieve.180 Even if this were achieved, those governments who would most benefit, and those citizens who would most lose out, would be in authoritarian states. People in these states rely on the Court the most as a channel for justice for fundamental rights and freedoms that the rest of us take for granted, such as property rights, the execution of court decisions, free and fair elections (with the exception of prisoners), freedom of expression and protection from discrimination on racial, sexual or religious grounds, torture and ill-treatment, to name a few. If the UK had not been a signatory to the Convention and the Government had not received numerous unwelcome judgments over the last 60 years, it is unlikely that standards of human rights protection would be as strong in the UK.

One particular case at the European Court which might qualify as of greater interest to the UK general public was communicated to the UK Government in 2014, lodged at the Court by Big Brother Watch and other rights groups. The applicants are challenging the widespread use of surveillance methods and data collection employed by the state security services through social media companies and internet service providers. They allege that such practices violate the right to privacy (Article 8 of the ECHR).181 A number of other rights groups, including Liberty and Privacy International complained to the UK Investigatory Powers Tribunal (IPT) about the same issue. While the IPT declared in February 2015 that this practice had been illegal there was no indication as to how the issue would be resolved in future and the loophole in the law (RIPA) for such practices would be closed. Consequently, both these groups have decided to file applications at the European Court182 much in the same vein as Big Brother Watch.183 The right to privacy in the use of ICTs is clearly an issue that affects everyone: ‘us’ as well as ‘them’ and yet the human rights narrative will no doubt be missing from the UK press.184 As well as the Conservative Government, another beneficiary of the practice of violating privacy is the populist press. Until the benefits of the human rights framework are properly communicated through the mainstream media, people in the UK are at risk of being tricked out of their rights under the Convention in supporting the repeal of the HRA and UK’s withdrawal from the ECHR. partys-proposals-for-a-british-bill-of-rights/ B. Sankey (2014), Legally Illiterate, Liberty, 2.10.2014 https://www.liberty-human-rights.org.uk/news/latest-news/legally-illiterate 179 Interview with * London, February 2015 180 Ibid. 181 Big Brother Watch and others v UK, no. 58170/13, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140713#{"itemid":["001-140713"]} 182 O. Boycott (2015), ‘UK-US surveillance regime was unlawful ‘for seven years’ : Regulations governing access to intercepted information obtained by NSA breached human rights laws, according to Investigatory Powers Tribunal’, 6.2.2015 http://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa 183 See also the Parliamentary Assembly of the Council of Europe (2015), Committee on Legal Affairs and Human Rights, Mass Surveillance, AS/Jur (2015) 01, 26.1.2015, http://website- pace.net/documents/19838/1085720/20150126-MassSurveillance-EN.pdf/df5aae25-6cfe-450a-92a6- e903af10b7a2 184 The Mirror and the Guardian and perhaps the two exceptions, interview with ** London, February 2015

21