Tuesday, 12 April 2011

Prisoner Voting ... UK government given 6 months to introduce legislation ...

On 15th March Law and Lawyers noted that the U.K. government had requested the Grand Chamber of the European Court of Human Rights to consider the case of Greens and M.T. v U.K.  decided by a chamber of the court on 23rd November 2010.

The Grand Chamber has refused and the U.K. now has 6 months from 11th April 2011 to introduce legislative proposals.  The blanket ban within the U.K. on prisoner voting was
found to be in breach of the Convention in Hirst v U.K. (No.2) decided in 2005.  There will be intense dislike of this within the British government.  Their reaction is awaited with interest.  See Euronews 21st February 2011 - "Britain promises European Human Rights debate" when the U.K. takes the chairmanship of the Council of Europe.

The media are inaccurate in using the term "appeal" in relation to this process.  Article 43 of the European Convention on Human Rights sets out the process.  Within 3 months of the date a Chamber judgment, any party to the case, may, in exceptional cases, ask for the case to be referred to the Grand Chamber.   A panel of five Grand Chamber judges then sits to decide whether to accept the referral. The panel "shall" accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.  (Paragraph 9.2 of this document is also of interest).  Unfortunately, in the Greens and MT case, the panel of five has not given reasons for deciding not to accept the case.  Clear reasons, stating at least the key points, are important in judicial decision-making and in enabling the general public to discover, if they so wish, why a court reached a particular conclusion.


  1. In my view, the UK was misguided in seeking to appeal Greens and MT v UK to the Grand Chamber. The UK was successful in appealing Hirst v UK (No2) and the UK lost its appeal. The Grand Chamber decision is final. Hirst No2 is described as a leading case. Frodl v Austria was prevented from going to the GC. As there were no exceptional circumstances it was only right that the Greens appeal was rejected.

    As you say, the Government will not like its attempt to delay the inevitable being rejected. I also await the reaction with interest. Perhaps, in future the Government will not listen to very Tom, Dick and Harry MP all claiming to be experts on my case?

    It is obvious that the panel of 5 GC judges have stuck with the reasoning of the GC in Hirst No2. Nothing in the Government's submissions altered this position. Basically, the UK as the losing party was only stating that it considered that the GC had wrongly decided the case. Next!

  2. Interesting, but I think this story will run a bit further yet. Bluntly, the Grand Chamber seems to be instructing the government to change domestic law. The government can only put proposals before Parliament and I would be very surprised indeed if Parliament agreed to change the law. What then? Jailhouse Lawyer may not like it but Tom, Dick and Harry MPs will not be dictated to - they would rather exit the jurisdiction of this court.

  3. Ed (not Bystander)16 April 2011 at 18:33

    What if s1 HRA 1998 were amended such that art 3 of the First Protocol did not apply? I am comfortable that the Mother of Parliaments has got the hang of the whole "democracy" thing. Sorry, Hirsty.

  4. Anonymous: The ECtHR is well within its rights to exercise its new powers granted under Protocol 14 of the Lisbon Treaty. Parliament has no option but to comply or leave the Council of Europe. In my view, it was the ECtHR which was being dictated to by the UK and stood up to the bullying tactic.

    Ed (not Bystander): The HRA 1998 is already incompatible with the Convention because the ECtHR has already ruled that s.3 of ROPA 1983 is not compatible with Art3 of the 1st Protocol. We have a situation of conflictng statutes. It will be nice when we finally get a democracy in the UK. Almost there. I bet you never thought Ghana might be a beacon of human rights advancing where the UK dare not tread?

  5. Well Jailhouselawyer we shall see. I spoke to my own MP about this matter a fortnight ago. He is a moderate on all things European, but if his attitude is anything to go by this matter will not pass in Parliament. You say the UK will have to leave the Council - maybe that is the ultimate destination, but you should remember that there are a good many MP's who would cheer that anyway. I think european politics will come in before then. The UK is not the only government dissatisfied with ECHR which appears (and I readily admit not being an expert) to be trying to extend its jurisdiction. Was not the question of voting rights excluded when the court was established? I suspect that in the long run it will be the Court that loses this battle. How much does the UK pay to the Council and through the Council to the Court?

  6. Ed (not Bystander)22 April 2011 at 19:08

    In my professional opinion, Strasbourg is significantly overreaching on the matter of prisoners and voting. The margin of appreciation is not being set correctly, and Strasbourg will only have itself to blame for the consequences.