Greens and MT v United Kingdom  ECHR 1826 (23 November 2010)
The European Court of Human Rights recently considered the United Kingdom's continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK. The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case. In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.
Prisoners have been prohibited from voting in elections in the UK since 1870. This blanket ban is currently set out in s 3 of the Representation of the People Act 1983 (UK) (the RP Act), which provides that '[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local election.' Section 8 of the European Parliamentary Elections Act 2002 (UK) extends this prohibition to elections for the European Parliament.
Article 3 of Protocol No 1 to the European Convention on Human Rights states that '[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.'
In 2005, in Hirst, the European Court held that the UK's blanket ban on prisoners' voting rights violated Article 3 of Protocol No 1 to the Convention. In 2007, in Smith v Scott, the Scottish Registration Appeal Court considered Hirst and concluded that s 3 of the RP Act could not be read down in accordance with section 3(1) of the Human Rights Act 1998 (UK) in a way that would make it compatible with the Convention. The Scottish Registration Appeal Court therefore made a declaration of incompatibility under s 4 of the HR Act in relation to s 3 of the RP Act.
In November 2010, despite formal urging from the Council of Europe's Committee of Ministers in the lead-up to the 2009 European Parliament elections and the 2010 UK general election, the UK Government had not removed the blanket ban on prisoner's voting rights.
The applicants in Greens and MT had been detained in prison at the time of the 2009 European election and the 2010 UK election, and had been refused enrolment on the electoral register in respect of both elections. The applicants applied to the European Court, arguing that the UK had violated art 3.
Unsurprisingly, given that the same rights had been considered in relation to the same legislation in Hirst five years earlier, the Court concluded that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention.
The more interesting aspect of the European Court’s decision in Greens and MT was its treatment of the UK Government's continued failure to amend the RP Act. Under art 46 of the Convention, all Council of Europe member states are obliged to implement appropriate measures to protect rights which the Court finds to have been violated. In order to facilitate this process, the Court may adopt a 'pilot judgment procedure', allowing it to:
- identify the existence of structural problems underlying the violations at issue in a case;
- indicate specific measures or actions to be taken by the responsible state to remedy those violations; and
- resolve large numbers of individual cases arising from the same structural problems at a domestic level.
At the time that Greens and MT was decided, there were approximately 2500 applications before the European Court involving complaints about s 3 of the RP Act. At any one time, there are approximately 70,000 serving prisoners in the UK — all of whom could potentially apply to the Court while the blanket ban on prisoner's voting rights remains in force. Given the potential volume of future applications, the Court noted that the UK Government's continued failure to amend the RP Act was not just a contravention of its obligations under the Convention — it also represented a 'threat to the future effectiveness of the Convention machinery'.
The Court did not consider it appropriate to recommend specific measures for the UK Government to take in relation to the violation of art 3, instead noting that:
The Court’s role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.
However, while the Court did not consider it appropriate to specify the content of future legislation, it did set out a timetable for compliance — ordering the UK Government to introduce legislative proposals to amend s 3 of the RP Act within six months of the date on which the Court’s decision in Greens and MT became final. In light of this deadline, the Court concluded that there was no justification for continuing to examine every application asserting that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention. Noting that the only effective remedy in any of those cases was the amendment of s 3 of the RP Act, the ECHR decided to:
- discontinue its examination of pending applications raising arguments similar to those in Hirst; and
- suspend the treatment of all applications not yet registered and all future applications raising such arguments.
Relevance to the Victorian Charter
Section 18 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the right to vote and the right to participate in the conduct of public affairs. However, following the High Court's decision in Roach v Electoral Commissioner (2007) 233 CLR 162 that a blanket ban on prisoner's voting rights is unconstitutional in Australia, it seems unlikely that any Australian jurisdiction would attempt to introduce a provision equivalent to s 3 of the RP Act.
The Charter contains no real equivalent to the European Court’s pilot judgment procedure. Sections 33, 36 and 37 of the Charter allow the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and to require the relevant Minister to respond to that declaration. However, the Minister is only required to prepare a written response to the declaration, and is not required to take any other action to remedy the inconsistency. Further, a declaration of inconsistent interpretation does not affect the validity, operation or enforcement of the statutory provision in question.
It is not yet clear what approach the UK Government will take to amending s 3 of the RP Act. Future decisions considering the adequacy of the UK Government's amendments — both from the European Court and the UK courts (under the HR Act) — are likely to be relevant in Australia, particularly given that the High Court in Roach left open the possibility of restrictions on prisoner's voting rights which did not amount to a blanket prohibition.
The decision is at www.bailii.org/eu/cases/ECHR/2010/1826.html.
Mark Hosking is a Lawyer with Allens Arthur Robinson