Introduction
The case of Hirst v United Kingdom (No. 2), citation 74025/01, represents a significant judgment from the European Court of Human Rights (ECHR) concerning prisoner voting rights. The core concept under examination is the extent to which a state can restrict the right to vote for individuals convicted of crimes and serving custodial sentences. The technical principles at play involve the interpretation of Article 3 of Protocol 1 of the European Convention on Human Rights, which guarantees the right to free elections. Key requirements for establishing a violation of this article include demonstrating that a restriction on voting is disproportionate and not justified by any legitimate aim, within the concept of the margin of appreciation afforded to states. This case formally established that a blanket ban on prisoner voting, such as that implemented in the United Kingdom, was a breach of convention rights.
The Facts of Hirst v UK
The legal action was initiated by Mr. John Hirst, a prisoner serving a discretionary life sentence for manslaughter. His legal team contended that the blanket ban on prisoner voting imposed by Section 3 of the Representation of the People Act 1983 violated his rights under Article 3 Protocol 1 of the ECHR. The specific contention centred on the assertion that disenfranchising all prisoners, regardless of the nature or severity of their crime, was an arbitrary and disproportionate measure. The United Kingdom government argued that a wide margin of appreciation should be granted to member states when determining matters concerning elections, and that the ban reflected a legitimate aim. However, the ECHR ultimately determined that the UK had exceeded its margin of appreciation. The background of this case illustrates the broader tension between national sovereignty and international human rights standards.
The Core Issue: Margin of Appreciation
The central legal issue addressed in Hirst v UK concerned the scope of the margin of appreciation afforded to member states of the Council of Europe in matters related to voting rights. The United Kingdom contended that because these issues are intimately linked to national contexts and specific societal norms, they were appropriate subjects for domestic determination, granting a substantial margin of appreciation. The ECHR acknowledged that states enjoy a certain degree of discretion in setting the rules regarding elections. However, it specified that such discretion is not without limits, especially where fundamental human rights are at stake. The court stated that a restriction on the right to vote must be proportionate to the legitimate aim it seeks to achieve, and that the state must demonstrate that a considered approach was taken when implementing such a policy. The court's analysis focused on whether the UK had conducted an assessment of the proportionality of the complete voting ban against contemporary penal policies and human rights norms.
The Court’s Judgment and Reasoning
The ECHR ruled, with a majority of twelve to five, that the United Kingdom’s indiscriminate ban on prisoner voting was indeed a violation of Article 3 Protocol 1 of the ECHR. The court emphasized that although it acknowledged a wide margin of appreciation for member states, it was not an "all-embracing" concept. The judgment specifically noted the absence of evidence to show that the UK legislature had adequately assessed the proportionality of the ban in consideration of modern penal policy. The court stated in particular that the ban on prisoner voting was a general, automatic, and indiscriminate restriction on a vitally important convention right, and therefore, fell outside of the permissible margin of appreciation. This ruling highlighted the importance of maintaining a balance between state authority and the protection of fundamental rights. This balance requires that restrictions on basic rights, such as the right to vote, need to be reasoned and proportional.
Implications for UK Law
The Hirst v UK decision posed significant challenges for the United Kingdom, a state that had traditionally granted substantial weight to parliamentary sovereignty, and which holds the rule of law as a central tenet of its constitution. While the UK is obligated under Article 46(1) of the ECHR to comply with judgments of the ECHR, the implementation of the Hirst ruling proved difficult and resulted in a period of conflict between the UK and the European Court of Human Rights. Despite the ruling, the UK did not amend Section 3 of the Representation of the People Act 1983. Consequently, although some administrative amendments allowed prisoners released on Home Detention Curfew to vote, the majority of prisoners remained disenfranchised. This selective implementation raised questions regarding the United Kingdom’s adherence to international human rights laws and the limitations of the Human Rights Act 1998.
The Ongoing Debate: Moohan v Lord Advocate
The continued struggle to fully comply with the Hirst v UK ruling can be seen in Moohan v Lord Advocate [2014] UKSC 67. This case concerned the blanket ban on prisoners voting in the 2014 Scottish Independence Referendum. The Supreme Court dismissed the appeal, deciding that the right to vote under Article 3 Protocol 1 did not cover referendums, and was specifically intended to cover the democratic election of a legislature. Lord Hodge, in the majority judgment, highlighted the necessity for domestic courts to follow Strasbourg case law, unless it was “inconsistent with some fundamental substantive or procedural aspect of our law.” It was held in this instance that the ruling was not inconsistent with the domestic law. The Moohan decision illustrates the complex relationship between domestic legal interpretation and Strasbourg jurisprudence. It demonstrates that while the Hirst case established a principle against general disenfranchisement, its specific application can be open to interpretation in differing domestic contexts.
Chester v Secretary of State for Justice
The case of R (Chester) v Secretary of State for Justice [2012] UKSC 63 further confirms that the UK's blanket ban on prisoner voting is inconsistent with the right to vote under A3P1 of the ECHR. In Chester, two prisoners serving life sentences for murder claimed that their rights had been infringed by the disenfranchisement. This was made on the basis of Article 3 of Protocol No 1 to the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998. The Supreme Court applied the principles established in Hirst, agreeing that the blanket ban is a breach of prisoners' rights to vote. However, Lord Mance stated that “there was no point in making a further declaration of incompatibility” because Parliament was already considering the Hirst ruling, and any further declaration of incompatibility would add little or nothing of practical value, because the Parliament was already engaging with the ruling. This demonstrates that, while the judiciary agreed with the judgment from the ECHR in Hirst, a further declaration of incompatibility would have been of little additional benefit.
The Human Rights Act 1998 and Parliamentary Sovereignty
The Human Rights Act 1998 (HRA) was a significant piece of legislation, designed to incorporate the rights and freedoms enshrined in the European Convention on Human Rights into UK law. While the Act ensures the ECHR standards are incorporated, it also respects the doctrine of parliamentary sovereignty, a central concept of the UK constitution. This doctrine means that the parliament, as an elected body, holds ultimate law-making power, which can make it challenging to reconcile international human rights obligations with national legislative decisions. The HRA compels UK courts to interpret legislation in a manner compatible with the ECHR rights “so far as it is possible to do so.” If a court cannot interpret primary legislation compatibly with the Convention rights, they may issue a ‘declaration of incompatibility.’ However, a government has the option to decline to implement a remedial order if they choose to do so, as demonstrated by the UK government’s lack of full compliance with Hirst v UK. The legal framework surrounding the HRA therefore creates an environment where the judiciary may highlight human rights breaches, yet does not necessarily have the power to directly rectify them without a change in the legislative framework.
Criticisms of the Human Rights Act
There are criticisms levelled against the Human Rights Act, with many arguing that it infringes upon parliamentary sovereignty. It has been noted by some that the Act’s power is political rather than legal, and Parliament has the choice to ignore declarations of incompatibility if they wish. Indeed, on the specific issue of prisoner voting, successive governments have failed to enforce a solution despite the declaration of incompatibility issued after the ruling in Hirst v United Kingdom (No 2), highlighting the potential weakness of the Act. Further concerns were generated by cases like S and Others v Secretary of State for the Home Department, where individuals who had hijacked a plane and sought asylum in the UK were difficult to remove from the jurisdiction. These types of cases are commonly quoted as examples of where the HRA has failed to protect the rights of the community over the perceived rights of the individual. Consequently, the Act has been frequently cited by some as demonstrating an erosion of the UK’s traditional legal principles.
Conclusion
Hirst v United Kingdom (No. 2), citation 74025/01, remains a landmark judgment in the context of prisoner voting rights under the European Convention on Human Rights. The case established that a general and automatic ban on prisoner voting is a breach of Article 3 Protocol 1. While the United Kingdom is subject to the ruling of the ECHR, the implementation of this particular judgement has proven troublesome for national legal and political institutions. Cases such as Moohan v Lord Advocate and Chester v Secretary of State for Justice illustrate the ongoing dialogue between domestic courts and the jurisprudence of Strasbourg in the context of the HRA 1998. The ongoing disagreement about prisoner voting demonstrates the complexity of reconciling international human rights standards with national democratic traditions and the principle of parliamentary sovereignty. The Hirst ruling, coupled with the UK government's continued resistance, raises fundamental questions about the true nature of the HRA and the extent to which it is able to fulfil its function.
