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A Battle over Prisoner Voting Rights

- February 10, 2011

A stare down has developed between the United Kingdom and the European Court of Human Rights over prisoner voting rights that could potentially have major consequences for European integration and international human rights instruments. Back in 2005, the European Court of Human Rights (ECtHR) ruled that the United Kingdom had violated the human rights of a man who had murdered his landlady with an axe by denying him the right to vote. British tabloids predictably had a field day with the ruling and have showed images of the “axe killer” celebrating his court victory with cannabis and champagne.

Politicians tried to stay away from the issue as best they could. Labour government officials delayed implementation of legislation that would bring the UK in compliance with the legal principles developed in the ruling: namely that there could not be a blanket ban on prisoners rights to vote but that there must be a discernible link between the sanction (eliminating voting rights) and the conduct that led to the sanction (a reasonable position, it seems to me). The current conservative Prime Minister David Cameron has said that the very idea of granting prisoners the right to vote “makes him feel sick.” The British Court of Appeal has refused to step in and force the government’s hand on this issue.

The dynamics changed when the European Court ruled in November of 2010 that two prisoners were entitled to 5,000 Euro compensation each for the denial of their voting rights (the tabloids did not hesitate to point out that one of them was a rapist). The Court also stated that the UK should bring forward legislative proposals to amend their legislation within six months. Now, the Court cannot actually nullify legislative acts or order legislative changes. What it can do is implicitly threaten that each prisoner who brings a similar case will be awarded compensation. Moreover, in the past the Court has created procedures to simplify and speed up the processing of repeat violations. This could quickly lead to millions in compensation that the British government would have to pay to prisoners. Hence the British government put forth a proposal that would minimally meet the Court’s standards allowing some prisoners the right to vote but not other. It now looks like this proposal will be voted down today, in open defiance of the Court. (An enterprising political scientist should look at whether the number of prisoners in an MPs district (quite large for some) help explain voting patterns).

Attacks in Britain on the Court go well beyond this issue. For example, Lord Alexander
Carlile, the government’s official watchdog on anti-terrorist issues, issued a report in which he said that
Britain had become a “safe haven” for terrorists, primarily because of
rulings by the ECtHR The tabloids are urging prime minister Cameron to “go to war” with the Court and have attacked the competence of individual ECtHR judges. There is serious discussion of leaving the ECtHR’s jurisdiction, which is not a European Union institution (it has 47 member states) but is increasingly tied in with the EU.

There are obvious concerns here about what open defiance and potential exit on the part of the UK could do to the broader human rights system in Europe. The ECtHR has an important role to play especially (though not exclusively) in Russia, Turkey, and parts of Eastern Europe. In some ways, the Court has become a victim of its own success. It now has a backlog of more than 140,000 applications, many of which are complicated and politically controversial.The recent adoption of Protocol XIV may make the Court somewhat more efficient but ultimately there is simply no way that a Court with 47 judges can manage a case load like this.  There are essentially two options for reform. First, the capacity of the Court could be expanded. Yet, there is very little enthusiasm for this among member states. Second, the Court could institute something similar to the certiorari process the US Supreme Court uses that would allow it to deal only with the most important legal issues leaving smaller issues of implementation to national subsidiaries. This idea is hugely unpopular with NGOs and other human rights advocates, who cherish the individual application process. The best bet is that nothing will happen, leaving the Court to fight its battles with member states. This is interesting to watch as a political scientist but concerning if we care about the effectiveness of human rights instruments.