Chapter 25 Guidance on answering the exam questions

1. Should the Convention support a wider range of rights to public participation in the public and political life of the nation than it does? Explain the range of rights as currently understood and discuss, in particular, whether they ought to apply to voting in referendums.

• This answer requires an evaluation of the limits to Article 3 of the First Protocol.

• In particular it focuses on the individual rights inherent in Article 3 (Mathieu-Mohin and Clerfayt v Belgium) and their limits.

• In particular the focus of the question is on the limit in Article 3 to elections for the legislature.

• This term should be defined (see Mathews v United Kingdom).

• Firstly, therefore, Article 3 provides a rather narrow conception of political rights - it can also involve a contrast with other “political rights” such as Article 25 ICCPR – which guarantee rights to wider forms of political participation beyond participation in elections. It should be noted, however, that other forms of political participation are protected by Articles 10 and 11.

• Secondly, Article 3 applies this narrow, election focused, range of political rights to the national legislature (including the European Parliament and devolved assemblies) but not to other important elections such as local councils and referendums.

• In conclusion, it might be thought that Article 3 should apply at least to the important elections and referendums – those whose outcomes are important and decisive for people’s lives. This point was made strongly by the dissenting members of the Supreme Court in Moohan v Lord Advocate where it was held that Article 3 did not even apply to the Scottish Independence Referendum. The position of the majority was that, desirable or not, this result was compelled by the case law of the ECtHR.

2. Advise a prisoners’ rights pressure group on arguments they might make to the effect that the scheme for giving prisoners the right to vote in UK elections does not (despite the Committee of Minister’s acceptance) satisfy Article 3 of the First Protocol.

• Consider, first, the current nature of the total ban (RoPA 1983 section 3).

• Chart the history of the challenge in Strasbourg (see especially Hirst v UK; Greens v UK and Scoppola v Italy and Chester v SSJ). Note in particular the issue of remedies when a country does not want to give effect to an ECtHR decision.

• The question is about an appropriate scheme which will satisfy Strasbourg.

• Following Scoppola (in which the ECtHR probably slightly resiled from its stronger position in Hirst) it is clear that the basis of the ECtHR’s objection is to a scheme which is automatic, general and indiscriminate. The ECtHR does not require all prisoners to have the vote but it does require any scheme to be based on criteria which can discriminate between prisoners so that at least some of them have the vote.

• After years of applications to courts and political/diplomatic negotiation with the Committee of Ministers, the result, acceptable to both parties does seem very weak, and this may be the foundation of the pressure groups case. There is no change to the law; judges, however, will be encouraged (not required) to inform those they sentence of the loss of the right to vote (there is a discretionary element here which is inconsistent with the normal position under the Convention that interferences with rights need to be based on clear legal principles); finally, there is a change to Prison practice to the extent that prisoner on temporary licence will be allowed to register for voting.

• The reasons for denying the vote need to be evidence based and capable of outweighing the fundamental reason in favour – that voting is not a privilege to be given and taken away by the state but a right. The ECtHR has also set its face against a blanket ban. It is hard to see what evidence there is behind the distinction made in this policy.

• What seems to be absent is any clear, law-based system for, for a system that properly differentiates between prisoners – as is required if a blanket policy is to be avoided.

• The pressure group should emphasise the degree to which voting is a right and not a privilege. This, in Convention terms, means that there have to be significant reasons for overriding the right and that these are not present in the scheme. Prisoners are not alike in terms of moral wrong, and this should be recognised – a point which undermines the argument for the ban based on, as it were, breaking the social contract. There are important practical reasons: not voting means that they have no MP to represent their interests, even though conditions in many UK prisons are bad and may breach Conventions rights such as Article 8 and perhaps even Article 3.
• But the pressure group’s difficulty remains: the UK’s scheme has been accepted by the Committee of Ministers. Only political change in the UK Parliament will alter matters.