title: The Constitutional Controversy of Prisoner Voting: Rights and Institutions Between the UK and Europe
Creators: name: Adams, Elizabeth
Publisher: name: University of Liverpool Repository
Year: 2022

description: In Hirst v United Kingdom (No.2) (Hirst) the European Court of Human Rights (ECtHR) held that the UK’s legislative ban on prisoner voting violated Article 3 of Protocol 1 of the European Convention on Human Rights. Following Hirst, a protracted constitutional clash between the UK and Strasbourg ensued, as the UK resolutely resisted compliance with the judgment in Hirst. The UK Government introduced administrative amendments which appear to have resolved the clash. However, this thesis argues that these amendments fundamentally undermine the ECtHR’s requirements for legislative amendments, as the Committee of Ministers of the Council of Europe sanctioned a form of corrective compliance. This thesis unravels the constitutional controversy of prisoner voting, which enables detailed understanding of the multifaceted nature of inter-institutional roles and relationships in rights protection. In exploring the clash, first to situate the discussion, this thesis delineates the background context to prisoner voting. It then explores the key principles relevant to rights protection in the UK and at the European level. The core of this thesis provides a detailed analysis of the approaches of the domestic courts, European courts and political institutions to prisoners’ voting rights. Crucially, rather than attributing blame to any one institutional actor, this thesis argues that the clash reveals multiple institutional failures in terms of rights protection. As such, it is proposed that the clash constitutes a “lose-lose-lose-lose-lose” scenario. It is a “loss” to the domestic courts, as their generally hands-off approach to prisoners’ voting rights undermined human rights protection, revealing judicial reticence regarding the exercise of the constitutional role accorded to them under the Human Rights Act 1998 (HRA), which contributed to their failure to hold the UK Government to account. It is a “loss” for Parliamentary protection of rights as Parliament’s involvement was circumvented and the clash has seemingly been resolved by executive administrative amendments. Further, it constitutes a “loss” for the Government, as its resolution of the clash was only reached after several years of prolonged conflict in which it sustained repeated criticism for its recalcitrant response to prisoner voting, resulting in reputational damage. It is a “loss” for the ECtHR, as its jurisprudence and its legitimacy were undermined by the UK’s non-compliance and its loss was then solidified by the CM’s endorsement of the UK’s administrative amendments which undermined the ECtHR’s requirement for legislative change. The CM’s acceptance of the UK’s administrative amendments also constitutes a loss to the authority of Strasbourg’s political institutions. In assessing why each institution lost, this thesis argues that the domestic courts’ reticence was primarily evident in their decision to refrain from granting a second declaration under s.4 HRA. The domestic courts were excessively deferential to the political branches as they were overly concerned with the expected negative political responses to the declaration. Instead, it is argued that the Supreme Court in Chester in particular, should have recognised the declaratory nature of s.4 HRA, that it respects and allows for political discretion. The Court’s non-interventionist approach accorded the political branches greater leeway to procrastinate and opt for minimalist compliance. Therefore, the Court should have granted a second declaration to reiterate the incompatibility. Further, whilst the Joint Committee on Human Rights had a valuable role in monitoring the Government’s compliance, ultimately Parliament failed to take an active role in the issue of prisoner voting. This accorded the Government greater scope to resist compliance. Moreover, the main cause of the ECtHR’s loss is the lack of clarity and consistency of the ECtHR’s case-law which undermined its procedural legitimacy. This further enabled the Government to resist Hirst. Therefore, a clearer and more consistent approach would have ameliorated the ECtHR’s loss. The CM’s loss was crystallised by its acceptance of the UK’s administrative amendments and in doing so, it also undermined the ECtHR’s case-law. The CM should have remained robust that legislative amendments were required to ensure compliance with Hirst. The analysis of these multi-dimensional institutional losses shows the institutional tensions that exist within and between institutions in navigating their roles in terms of upholding rights. When rights protection is placed under pressure by conflict, this can reveal challenges and weaknesses in the mechanisms of rights protection. Whilst ideally institutions should work collaboratively to ensure that rights are upheld, this can jar with the conflict-ridden reality of rights protection which may lead to rights being undermined. This analysis therefore extends understanding of the reasons why the prisoner voting clash specifically resulted in major challenges, and this thesis also considers what this shows about the roles and relationships of the key institutions discussed in rights protection. Crucially, this thesis argues that prisoner voting reveals that the institutional losses were mutually reinforcing and contributed together to rights protection being undermined. Therefore, blame cannot be solely attributed to one institution. Rather, each loss contributed to other losses. This thesis considers the broader lessons that can be learnt from the clash to attenuate or avoid such losses from occurring in the future. It concludes that the lesson of the prisoner voting rights controversy is that multi-institutional robustness is required to ensure effective compliance and that rights are upheld. For instance, this thesis argues that: domestic courts should confidently exercise their powers and grant a declaration of incompatibility under s.4 HRA; the UK Parliament should have greater oversight of the executive’s role in human rights issues at the supranational level; Strasbourg’s institutions should further enhance domestic parliament’s involvement; the ECtHR’s judgments should be as clear and as consistent as possible to increase its procedural legitimacy; and there should be institutional cohesion between CM and the ECtHR, meaning that the CM should refrain from sanctioning amendments which would fundamentally override, undermine or contradict the ECtHR’s judgment. Reinforcing institutional robustness and emphasising the combined institutional effort required to uphold rights could therefore operate to enhance rights protection, increasing the likelihood of effective compliance.