HUMAN RIGHTS

The long and winding road: the battle for the prisoners right to vote
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Dr Steve Foster* Introduction In November 2010 the long battle for prisoners enfranchisement was nearing its end and the government was finally, yet reluctantly, preparing to respond to the European Courts ruling in Hirst v United Kingdom (No 2),1 and making plans to grant a limited number of convicted prisoners the right to vote. Since that time we have had two new decisions of the European Court of Human Rights on prisoner disenfranchisement (including one pilot judgment giving the UK 6 months in which to comply with Hirst; two decisions of the domestic courts on whether to grant a declaration of incompatibility and/or award compensation with respect to failure to amend the offending legislation; a number of proposals from the government as to which prisoners would be given the right to vote (followed by their rapid withdrawal); a finding by a House of Commons Constitutional Committee spelling out the legality of a number of possible reforms of the law; threats made by the Committee of Ministers regarding the UKs failure to comply with the Hirst and the other judgment;2 an open vote in the House of Commons on whether prisoners should be entitled to vote; a statement from the government that it does not intend to comply with the Courts rulings; and finally an announcement that the government intended to challenge the recent pilot judgment and the Hirst judgment before the Grand Chamber of the European Court; a request which was declined by the Grand Chamber. Thus, what started out as a legal dispute on the moral and legal arguments for granting and restricting prisoner enfranchisement, has now been become a political, legal and diplomatic crisis, which threatens the status and future of the European Court of Human Rights judgments, the European Convention and the Council of Europe, as well, if the government is serious about its threats, the repeal of the Human Rights Act 1998 and its replacement with a British bill of rights.3 This article outlines the progress of this dispute from the first domestic legal challenge to the relevant domestic law to the current stance of the government with
This article is based on a paper presented at the Crime and Conflict Research Centre at Middlesex University on Friday 25 March 2011 as part of its conference on Human Rights and Citizenship * Principal Lecturer in Law, Coventry Law School 1 (2006) 42 EHRR 41
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Draft Resolution 9 November 2010. This follows Committee of Ministers Interim Resolution CM ResDH (2009) 160, December 3 2009; and subsequent decisions in March 2010, 3 June 2010 and 15 September 2010. See Council of Europe warns UK again over prisoner voting rights UK Human Rights Blog November 19 2010: http://ukhumanrightsblog.com/2010/11/19/council-of-europewarnsukagain-over-prisoner-voting-rights/ 3 On 18 March 2011 the Ministry of Justice launched an Independent Commission to investigate the case for a UK Bill of Rights: http://www.justice.gov.uk/news/newsrelease180311a.htm. The remit includes giving advice on the reform of the European Court of Human Rights. It is expected to report at the end of 2012.
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respect to the prospect of defying the rulings of the European Court.4 The article will proceed on the general assumption that prisoners retain their basic rights and that as with the enjoyment of other democratic rights the right to vote should not be lost on incarceration. Thus, it argues that the prisoner retains his or her citizenship and democratic rights and that any such rights should only be limited for reasons that would be regarded as legitimate by international human rights law, most specifically within the terms of the European Convention on Human Rights (ECHR), and that any legitimate restriction is necessary and proportionate, safeguarding it from arbitrary interference. The battle for enfranchisement The Representation of the Peoples Act 1983 provides that: A convicted prisoner 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. Further, s.8 of the European Parliamentary Elections Act 2002 extends that restriction to elections to the European Parliament. Although this excludes prisoners on remand, the provision applies a blanket ban on all convicted prisoners serving a sentence at the time of election. Following the coming into force of the Human Rights Act 1998 the provision was challenged in the domestic courts in R v Secretary of State for the Home Department, Ex parte Pearson and Martinez; Hirst v Attorney-General,5 the High Court ruling that the legislation was a legitimate and proportionate interference with the right to vote under article 3 of the First Protocol of the European Convention on Human Rights. The High Courts decision was based on its reading of the existing jurisprudence in this area, which appeared to offer a wide margin of appreciation to each member state. In the High Court Kennedy LJ was satisfied that while the notion

of ensuring a decent or moral electorate may have little place in todays society, it was Parliaments role to maintain and enhance the integrity of the electoral process. Although recognising that the existence of a legitimate aim might be difficult to articulate, his Lordship felt that there were clearly elements of punishment and electoral law to consider. Parliament had taken the view that convicted prisoners had forfeited their right to have a say in the way the country was being governed whilst they remained in custody. There was a broad spectrum of approaches among democratic societies and the United Kingdom fell into the middle of the spectrum. Further, the United Kingdoms position in that spectrum was clearly a matter for Parliament and not the courts, even in difficult cases such as the post-tariff discretionary life sentence prisoner.6 However, on appeal to Strasbourg, in Hirst v United Kingdom (No2,)7 the European Court of Human Rights held that the blanket ban was disproportionate as it applied to every prisoner irrespective of their sentence and was thus beyond the governments margin of appreciation in this area. The governments appeal to the Grand Chamber
For an analysis of the history of the dispute up until mid 2009, see Foster, S Reluctantly Restoring Rights: Responding to the Prisoners Right to Vote [2009] 9 (3) Human Rights Law Review 489 5 The Times, 17 April 2001; [2001] HRLR 39. 6 [2001] HRLR 39, paras. 40-41. 7 (2004) 38 EHRR 40.
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of the European Court was unsuccessful.8 Importantly, the Grand Chamber stressed that the right to vote was crucial to the foundations of a meaningful democracy and was a right, and not a privilege.9 Further, it stressed that there was no question that prisoners forfeited their Convention rights merely because of their status as prisoners; there was no place under the Convention for automatic disenfranchisement based purely on what might offend public opinion.10 In the Grand Chambers view: although the Convention did not exclude the imposition of restrictions on individuals who, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations, the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned.11 (Authors italics) However, the Grand Chamber accepted that the domestic provision might be regarded as pursuing the aims pleaded by the government, in so far as it was aimed at preventing crime, enhancing civic responsibility and respect for the rule of law, and of conferring a punishment in addition to the sentence.12 Thus, the Grand Chamber

found no reason to exclude these aims as untenable or as per se incompatible with the right guaranteed by article 3. However, it noted that the domestic provisions affected approximately 48,000 prisoners and that it applied in a blanket fashion to the full range of offences which warranted imprisonment. The criminal courts made no reference to disenfranchisement during sentencing, and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote.13 Further, the Grand Chamber noted that any issue of justification appeared to be regarded as a matter for the legislature, thus excluding the courts from any assessment as to the proportionality of the measure. The European Court had offered little guidance to the government as to what measures were necessary to comply with article 3 and the judgment, but stressed that the domestic legislature had never sought to weigh the competing interests or to assess the proportionality of the ban as it affected convicted prisoners. Thus, the United Kingdom government was left to decide on the best means of securing compliance. In December 2006 a consultation document was published by the Department of Constitutional Affairs, setting out the principles of prisoner enfranchisement and the options available to the United Kingdom,14 which was followed by the Ministry of Justices second stage consultation document, outlining the governments initial proposals.15 In these documents the government suggested a
(2006) 42 EHRR 41. Ibid, at para. 59 of the Courts judgment. 10 Ibid, at para. 69. 11 Ibid, at para. 71. 12 Ibid, at para. 74. 13 Ibid, at para. 77. In addition, there had been no substantive debate by the legislature on the continued justification of the policy in the light of modern day penal policy and of current human rights standards. 14 Voting Rights of Convicted Prisoners Detained Within the United Kingdom The UK Governments Response to the Grand Chamber of the European Court of Human Rights Judgment in Hirst v The United Kingdom. 15 Voting Rights of Convicted Prisoners within the United Kingdom, Consultation Paper CP6/09, April 8 2009).
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number of options of enfranchisement, but favoured the idea that prisoners sentenced to less than one years imprisonment would be automatically entitled to vote (subject to certain exceptions based on the type of offence for which the prisoner had been convicted). There followed a number of criticisms from both the Joint Select Committee on Human Rights,16 and the Council of Europe,17 with respect to the governments refusal to act on these recommendations and to introduce amending legislation.

In the meantime, a test case was brought in domestic law to challenge the original legislation, but in R (Chester) v Secretary of State for Justice,18 the Administrative Court refused to grant a declaration of incompatibility with respect to the 1983 Act and, specifically, the governments decision not to allow posttariff life sentence prisoners the right to vote, despite the fact that a general declaration had been made by the Scottish courts.19 This was because the court was concerned that the parliamentary process of legislative reform would be interfered with if it granted a declaration before the proposed statutory provisions were in place, and this decision was upheld by the Court of Appeal.20 Consequently, by May 2010, the time of the General Election, no law had been passed to address the judgment in Hirst, leaving the government vulnerable to claims brought by prisoners under the Human Rights Act. This threat, and the impending Court of Appeal hearing in Chester, forced the governments hand and led it to concede that further challenge to the claim for enfranchisment was unsustainable, and, most importantly, potentially too expensive. Further pressure was placed on the government by the decision of the European Court in MT and Greens v United Kingdom,21 a case brought by prisoners who were claiming that the governments refusal to respond to the judgment in Hirst was in violation of their rights under article 3. In a pilot judgment the Court held that the failure of the government to pass legislation in response to Hirst was in breach of article 3 and gave the government six months (from 23 November) to pass legislation complying with the judgment.22 The possible content of any such statutory change was further informed by another decision of the European Court of Human Rights. In Frodl v Austria,23 the Court held that there had been a violation of article 3 when a prisoner had been disenfranchised under a law that provided that anyone committing an offence with intent that carried a sentence of more than one year would forfeit the right to vote. Although the European Court accepted that the ban was less restrictive than the one considered in Hirst, it
Monitoring the Governments response to Courts Judgments Finding Breach of Human Rights HL/128 HC 728; Monitoring the Governments Response to Human Rights Judgments: Annual Report 2008; thirty-first Report of Session 2007-2008. Hl Paper 157; HC 1078, 31 October 2008. 17 Committee of Ministers Interim Resolution CM/ResDH (2009) 160. 18 [2010] EWHC 63 (Admin) 19 Smith v Scott [2007] CSIH 9.
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Chester v Secretary of State for Justice and Wakefield Metropolitan District Council, The Times, January 17 2011. For similar refusals in the Scottish and Northern Ireland courts, see, respectively, Traynor v Secretary of State for Scotland [2007] CSOH 78, and R v Secretary of State, ex parte Toner and Walsh [2007] NIQB 18. 21 The Times, 24 November 2010 22 As under Article 41 judgments do not become binding until the expiry of three months, to allow any party to appeal to the Grand Chamber, the initial date is delayed by three months. The UK government subsequently appealed, and the referral was refused, see later. 23 (2011) 52 EHRR 5
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found that the lack of judicial input into the decision to disenfranchise the particular prisoner led to a violation of article 3.24 This suggested that any legislative measure passed in England and Wales would need to include this impartial judicial safeguard, although the judgment in Hirst indicated that such a safeguard was merely desirable rather than compulsory. In addition, the Frodl judgment re-iterated the dicta in Hirst, that prisoner disenfranchisement should only follow where there is a direct link between the offence and disenfranchisement, suggesting further that there may have to be a link between the offence and democracy: it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.25 (Authors italics) Whether that suggests that the offence would need to be related to electoral offences or the like, or whether that is just an example of such, in any case the Court stressed: The essential purpose of [these] criteria is to establish disenfranchisement as an exception even in the case of convicted prisoners, ensuring that such a measure is accompanied by specific reasoning given in an individual decision explaining why in the circumstances of the specific case disenfranchisement was necessary...26 The fact that the Court refused Austrias request to appeal that decision to the Grand Chamber, meant that the opportunity to clarify those issues was lost, although subsequently, in Scoppola v Italy (No 3),27 it re-iterated the unacceptability of blanket bans by finding that an automatic life time ban on voting for those sentenced to life imprisonment was indiscriminate, disproportionate and outside any acceptable margin of appreciation. The government responded to these decisions by suggesting, initially, that those serving sentences of four years or less would be enfranchised,28 but later proposed that only those sentenced to one year or less would be allowed to vote.29 Then in

February 2011 the government proposed that there was to be an open vote in the House of Commons on prisoner voting.30 This was preceded by a meeting of a parliamentary constitutional committee, which received advice on the legal implications of the governments refusal to comply with Hirst and stressed that a blanket provision of any nature, irrespective of the length of the sentence would not
Ibid, at para. 36 of the judgment Ibid, at para. 34 26 Ibid, at para. 35 27 Application No. 126/05, decision of the European Court, January 18 2011 28 Thirty thousand prisoners will get the right to vote after victory in the European courts The Daily Telegraph, January 6 2011, page 2. See Cabinet Office, Government approach to prisoner voting rights, 17 December 2010: http://www.cabinetoffice.gov.uk/news/government-approachprisonervotingrights 29 Prisoner votes: climb down on the cards, http://news.sky.com/skynews/Article/201009115900686; the Cabinet Office refused to confirm this 30 Tory free vote on prisoner polls Independent on Sunday, February 1 2011
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be acceptable to the European Court of Human Rights.31 In particular Eric Metclafe of JUSTICE stressed that: the problem was the blanket nature of the ban, and of the individual decision-making of it, not the length. So there is not a magic figure that with one leap we are free.32 Further, pre-empting the vote the Justice Secretary, Kenneth Clarke, stressed that the government would comply with its obligations and that at least some prisoners would get the right to vote, promising that the government was going to do the minimum necessary to comply with the ruling.33 However, by a large majority it was decided to take no action to give prisoners the right to vote and to defy the European Court judgment in Hirst.34 The House of Commons was urged by senior Tory back bencher David Davis and former Labour Justice Secretary Jack Straw to defy the Courts ruling and MPs backed that motion by a majority of 234 to 22.35 The proceedings, inevitably, excited passionate views, and the majoritys view is typically summarized by David Ruffley (Bury St Edmunds) Conservative): It is completely unacceptable that a criminal who has violated law to such an extent that that he or she is incarcerated and has their freedom withdrawn should be given the right to vote in a democratic election. It would give the British public the impression that the system has more respect for the criminal than for the sensitivities and interests of the victim, which are far too often overlooked. It would give the impression of a Parliament out of touch at best, and at worst the poodle of a European court.36 Of the minority, Tom Brake (Carshalton and Wallington) (Liberal Democrat) put forward two reasons in favour of allowing prisoners the right to vote: The first is that when the European Court of Human Rights finds that UK

law contravenes the European [c]onvention the UK government should address that illegality. Once we start picking and choosing the laws that we should apply and those that we can disregard where does it end? The Americans know where it ends: in Guantanamo Bay and Abu Gharib.37 The second reason s that it is the appropriate course of action. Prisoners have committed a crime. Their punishment is to lose their liberty. That is fair and just. What is then gained by seeking to inflict civil death on them? In what way does that benefit the victim? What is the logic behind the ban? We do not remove prisoners access to health care, nor do we stop them practicing their religion, so why should we impose a blanket ban on prisoners right to vote?38
House of Commons Political and Constitutional Reform Committee: Voting by convicted prisoners, summary of evidence, Fifth Report of Session 2010-11 HC 776. 32 House of Commons Political and Constitutional Reform Committee: Voting by convicted prisoners, summary of evidence, Fifth Report of Session 2010-11 HC 776, at paragraph 12 33 Kirkup, J Prisoners will get the vote, Kenneth Clark says The Daily Telegraph, 9 February 2011. 34 BBC News, 10 February 2011: www.bbc.uk/news/uk-politics-12409426 35 Hansard HC 10 February 2011, Column 584 (Division 199) 36 Hansard HC 10 February 2011, Column 540 37 Hansard HC 10 February 2011, Column 542 38 Hansard HC 10 February 2011, Column 543
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Both arguments are equally forcefully made and have their own logic; although the latter has the advantage of being based on the rule of law: an acceptance that legal judgments be respected, or at the very least followed by everyone, including governments. Back in the domestic courts, shortly after the vote in the Commons, on February 18 2011 the High Court delivered its judgment in Tovey, Hyndes and others v Ministry of Justice,39 refusing to make a declaration of incompatibility with respect to the 1983 Act and rejecting the prisoners claims for compensation for breach of article 3. This leaves prisoners in limbo with respect to the effective enforcement of their Convention rights because the domestic courts will not rule on their claims until Parliament has passed the necessary legislation and, in any case, cannot award compensation in the face of clear legislative provisions authorising a violation. Further, the European Court cannot enforce its decisions directly on the government and appears reluctant to award compensation in such cases. In another twist, and to buy further time before having to consider the repercussions of not complying with the judgments of the European Court, the government then announced that it would appeal the ruling in MT and Greens (above) to the Grand Chamber of the European Court.40 This would involve asking the Grand Chamber to reconsider its decision in Hirst, and by necessity, the subsequent rulings in Frodl and

Scoppola, thus restoring the governments margin of appreciation in this area and justifying the United Kingdom in retaining the status quo on the prisoners right to vote.41 This last ditch attempt at justifying their stance appeared preferable to an earlier idea: that the government ask the UK Supreme Court, rather than the European Court, to rule on the issue, hoping that the domestic court would be more receptive to the governments pleas for deference. Those hopes appeared to be dashed when the government had to consider reforming the law in response to the Supreme Courts ruling that sex offenders be allowed to appeal against being retained indefinitely on sex registers.42 This decision and a general dissatisfaction with the domestic courts and the Human Rights Act 1998, then excited a debate about the reform of the role of the European Court,43 and the abolition of the Human Rights Act and its replacement with a British bill of rights, where presumably there would be little room for prisoners rights and accommodation of the prisoners right to vote. In any case the Grand Chamber refused the request, and the government was given six months from that time (April 20) to comply with the judgments in Hirst and MT v Greens. Analysing the governments response and the legal, constitutional and diplomatic dilemmas
[2011] EWHC 271 (QB) Prince, R Prisoner vote appeal launched The Daily Telegraph, March 3, 2011, page 2. The government informed the Committee of Ministers of this move on March 1 2011 (DH-DD (2011) 139. 41 An unappealing tactic on prisoner votes UK Human Rights Blog March 14 2011: http://ukhumanrightsblog.com/2011/03/14/an-unappealing-tactic-on-prisoner-votes/ 42 R (JF) v Secretary of State for the Home Department [2010] 1 WLR 76 43 Asthana, A Britain will press for Strasbourg reform, says Clarke The Times, February 21 2011, page 3
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The litigation surrounding the right to vote for convicted prisoners has exposed a range of political, public and judicial attitudes towards prisoner enfranchisement, and prisoners rights in general. The initial decision of the domestic courts represented the idea of automatic forfeiture based on general and unarticulated ideas of punishment and civic responsibility. This view has been adopted by successive governments during the challenge, and since the judgment in Hirst, in their desire to retain the status quo. On the other hand, the decisions of the European Court of Human Rights in Hirst, Frodl and Scoppola question the bald assertion of automatic forfeiture and insist on a clear link between reasoned legitimate aims of sentencing and punishment

and the loss of the prisoners prima facie right to vote. This would clearly limit the scope of any reform that the current government does introduce, should it abide by the decisions of the European Court. That will leave the government the stark choice between genuine and real compliance or a diplomatic, and possible legal, impasse between it and the Council of Europe. The previous governments response to the decision in Hirst was frustrating; not only to prisoners, but also to the Joint Committee on Human Rights who felt that the governments prevarication and attitude in this area had both reneged on its international law obligations and betrayed the relationship of trust between the committee and the government. That governments belated response in the form of the second consultation document also ignored a UN report which suggested that the domestic law in this area may be in breach of the UN Covenant on Civil and Political Rights 1966.44 The present governments attitude has added further strain to its relationship with the Council of Europe, the European Court of Human Rights and those involved with the monitoring of effective human rights at both the domestic and international level. The reluctance and ultimate refusal by successive governments to accept that prisoners maintain their basic human rights on incarceration is certainly not novel, and prisoners have fought long and hard to gain their rights to procedural justice in disciplinary proceedings,45 the right to legal and personal correspondence,46 the right to marry and found a family,47 and the right to due process in matters relating to release and recall from prison.48 All of these cases have been staunchly defended by the government and in the case of prison discipline appealed, unsuccessfully, to the Grand Chamber of the European Court. The referral to the Grand Chamber in MT and Greens, and its possible refusal to pass any legislation in this area, therefore, is another instance of the government reluctantly accepting the spirit and tenor of judgments of the Court and attempting every avenue of appeal and argument before accepting the inevitability that prisoners do enjoy their Convention rights. However, the reluctance of the government to accept the judgment of the Court in this area is unprecedented; the government being prepared to defy the European Court and
Human Rights Committee, ninety-third session July 2008; Consideration of Reports Submitted by State Parties under Article 40: the United Kingdom of Great Britain and Northern Ireland, at para. 28. See Give prisoners the right to vote, The Guardian, September 19 2008 45 Campbell and Fell v United Kingdom (1984) 7 EHRR 165 and Ezeh and Connors v United
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Kingdom (2004) 39 EHRR 1 46 Golder v United Kingdom (1975) 1 EHRR 524 and Silver v United Kingdom (1983) 5 EHRR 347 47 Hamer v United Kingdom (1982) 4 EHRRR 139 and Dickson v United Kingdom (2008) 46 EHRR 41 48 Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666; Stafford v United Kngdom (2002) 35 EHRR 32

compromise its relations with the Council of Europe and its obligations under international human rights law for the sake of denying prisoners the right to vote. In contrast, it has accepted and complied with judicial rulings on the compatibility with international human rights law of its anti-terrorism measures - from both the domestic and European Courts - with relative equanimity and quiet resignation,49 making the necessary legislative changes in order to ensure basic compliance. This begs the question why it should take such an inflexible and intransigent stance with respect to the prisoners right to vote; allowing a free vote in the House of Commons on prisoner enfranchisement; but not, for example, on whether detention without trial and control orders, which were intended, albeit erroneously, to combat the threat of terrorism, should be retained in defiance of judicial pronouncements? Again why does a Prime Minister who is, albeit reluctantly, prepared to repeal the laws on control orders to make them more Convention compliant, feel physically sick at the thought of allowing a prisoner to vote whilst in prison? The answer may lie in the deep-rooted belief, shared by many politicians and on occasion by members of the domestic judiciary, that prisoners forgo their rights on incarceration and that their civil status is suspended on their sentence; thus relegating their rights to mere expectations that are enjoyed at the discretion of Parliament and the administrative decisions of Secretaries of State and the prison authorities.50 This idea of automatic forfeiture has often been supported in domestic decisions relating to questions such as whether prisoners should enjoy the general right to free speech,51 or the right to found a family whilst in prison.52 So too, it appears to be at the heart of many objections to extending the franchise to sentenced prisoners. The objection to rapists and murderers being entitled to vote obviously excites the most impassioned responses, but nevertheless the stance is led by a general desire to deprive prisoners of their democratic and political rights as part of their punishment for the crimes they have

committed; a desire which inexplicably disappears once the prisoner is released from prison as there appears to be no movement to disenfranchise prisoners beyond their actual incarceration. The futile battle for enfranchisement and justice The battle for prisoner enfranchisement has also exposed the futility of the prisoners protracted challenge to the offending legislation in both the domestic courts under the Human Rights Act 1998 and before the European Court of Human Rights under the Convention machinery. The European Court denied the prisoners substantive compensation for the loss of their right to vote, on the ground that finding the government in violation of Article 3 was just satisfaction and thus sufficient to dispense with the prisoners claims. This reflects the Courts reluctance to award non pecuniary loss for breach of an individuals democratic rights, where it is difficult to assess the damage to the victim and where there may be no evidence of loss of liberty,
A v Secretary of State for the Home Department [2005] 2 AC 58; A v United Kingdom (2009) 49 EHRRR 29; AP v Secretary of State for the Home Department [2010] 1 WLR 1652. 50 See Foster, S Automatic Forfeiture of Fundamental Rights: Prisoners, Freedom of Expression and the Right to Vote (2007) 16 (1) Nottingham Law Journal 1. 51 R v Secretary of State for the Home Department, ex parte OBrien and Simms [1999] 3 All ER 400 and R (Nilsen) v Secretary of State for the Home Department [2005] 1 WLR 1028 on the question of whether prisoners could gain access to journalists and write their memoirs whilst in prison. 52 R (Mellor) v Secretary of State for the Home Department [2000] 1 WLR 533 and Dickson v Premier Prison Service [2004] EWCA Civ 1477
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or harm to the victims property or person. This is, of course, compounded by the domestic courts refusal to grant such damages under the Human Rights Act 1998, and then to refuse to grant further declarations of incompatibility to mark the governments consistent failure to comply with the European Courts ruling. The failure of the European Court to grant substantial compensation in Hirst and MT and Greens was clearly predicated on the belief that the government would adhere to the ruling in Hirst, and the warning given in MT and Greens, and consequently change the law. Yet the domestic courts have stated that those judgments represent a general rule that would exclude the award of non pecuniary loss in such cases. It is suggested that such a ruling not only deprives the prisoner of an effective remedy for breach of their voting rights even if such an award could be made by the domestic courts in the face of clear legislation, which under the 1998 Act it cannot but also

encourages the government in its stance against enfranchisement. It thus allows it to feel secure in the knowledge that whatever diplomatic and political pressure may be placed on it to comply with the rulings, there would be no possibility of having to meet large compensation claims the very factor which forced the government to put forward limited proposals for reform at the end of last year.53 In addition, the domestic courts are refusing to grant further declarations of incompatibility to mark the continuous defiance of the government to change the law, on the basis that it would usurp the function of Parliament to respond to the judgment of the European Court and to enact appropriate legislation; a function it has no intention to carry out. It is suggested that a declaration of incompatibility, as the only possible remedy available to the prisoners given the domestic courts inability to grant compensation under the Human Rights Act 1998, should be granted to highlight the governments continued refusal to abide by even the bare essentials of the Hirst and MT and Greens judgments, and that the European Court should recognise that the refusal to grant such a declaration in these specific circumstances is a breach of article 13 of the Convention (the right to an effective remedy). That should be the case despite the Court having accepted in MT and Greens that as a general rule there is no right of a victim to have domestic legislation declared incompatible with Convention rights by the domestic courts. Conclusions It is clear that unless and until the government takes a measured and appropriate response to the judgments in Hirst and MT and Greens, it will continue to be in breach of its strict obligations under the European Convention on Human Rights. The previous governments continued illiberal and restrictive approach to the reform of prisoner enfranchisement initially laid it open to potential challenge in Strasbourg and in the domestic courts. The refusal of that government and the present coalition to pass the necessary legislative measures to comply with the European Courts ruling in Hirst then led, inevitably, to further challenges under the Convention and the Human Rights Act 1998. In an unprecedented show of stubbornness the government is willing to face the wrath of the prisoners, the courts and the Council of Europe in failing to

consider even the partial enfranchisement of prisoners. In doing so they are willing to
Watson, R, Asthana, A, Gibb, F Cameron seeks extra cover on jail votes The Times, February 19, 2011, page 5; Coates, S Cameron is clear to defy Europe on human rights, February 18 2011, pages 1, 9.
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ignore basic principles of equality, fairness, proportionality and legality; principles that they hope to enshrine in their new British bill of rights, whilst at the same time seeking to persuade Europe that its domestic mechanism for protecting rights is compatible with its obligations in international human rights law. The governments reluctance to accept the European Courts intervention in prison law and practice has been ongoing for over 35 years, yet its stance against prisoner enfranchisement is unprecedented in its willingness to depart from the basic principles of human rights for all.