In this post we are straying from our core area of commercial law to have a look at a topical example of how the European Convention of Human Rights (“ECHR”) is applied and enforced in the UK. Our excuse is that Art 8 of the ECHR, commonly known as the right to privacy (the right to respect for private and family life), impacts directly on many aspects of data protection and information technology law, and because we have just passed the 60th anniversary of the making of the ECHR (4 November 1950). However, our case involves Art 3 to Protocol 1 of the ECHR:
Right to free elections
The 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.
Protocol 1 was made on 20 March 1952. The UK was a party to the Protocol, so the provision can hardly be considered new.
John Hirst was born in the same year the ECHR was made; 1950. On 23 June 1978 he killed his landlady, 63 year old Bronia Burton, in an unprovoked attack with a heavy hand axe. He was subsequently convicted and imprisoned for manslaughter on the grounds of diminished responsibility. Medical evidence suggested that Hirst had a severe personality disorder so that he was considered amoral. The original tariff, being the part of his sentence relating to retribution and deterrence, was set at 15 years, but as a result of other violent offences committed whilst in prison, Hirst was not released on licence before he had served 25 years in prison, in 2004. We set out the background to John Hirst so that the political difficulty there appears to be in the UK to giving prisoners the right to vote can be understood. In an environment where politicians wish to appear to be tough on crime (and convicted criminals), the fact that John Hirst was convicted for a serious, violent offence does not help the rights’ argument. However, Hirst’s criminal record has no bearing on the ECHR case. He could equally as well have been convicted and imprisoned for non-payment of a fine.
Hirst first brought a case to the High Court in 2001 challenging the ban on prisoners voting under section 3(1) of the Representation of the People Act 1983:
A convicted person during the time that he is detained in a penal institution in pursuance of this sentence… is legally incapable of voting at any parliamentary or local election.
This provision can be traced back to a similar section of the Forfeiture Act 1870, which in turn is an enactment of rules of law concerning the forfeiture of rights by a convicted person that date back to the reign of Edward III (1312 – 1377).
The case sought to have section 3 declared incompatible with the ECHR, which is all that a private citizen can do under the Human Rights Act 1998 to redress a breach of his or her rights, but his claim was dismissed by Lord Justice Kennedy (Hirst v Attorney General  EWHC Admin 239). Kennedy LJ noted that the terms of Article 3 of Protocol 1 did not on their face grant any individual a right to vote, but relied upon the reasoning of Mathieu-Mohin and Clerfayt v Belgium  10 EHRR 1 that accepted that there was such a right, albeit that the right is not absolute. The European Court noted that nation states could include conditions on any right to vote and that they had a:
wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. (Paragraph 52)
However, Hirst, as with every other person claiming that their human rights under the ECHR have been infringed, had to exhaust his judicial rights of appeal in the UK before he could take his case to the European Court of Human Rights in Strasbourg (not to be confused with the Court of Justice of the European Union in Luxembourg). His case had been joined with R (on application of Pearson & Martinez) v Secretary of State for the Home Department and 2 Electoral Registration Officers. Applications for permission to appeal to the Court of Appeal were made in that case on 2 May 2001, but they were refused on 15 May 2001 on the ground that the appeal had no real prospect of success. Hirst applied for leave to appeal on 19 May 2001, but was similarly refused on 7 June 2001, as were renewed applications on 18 June 2001.
Hirst pursued the case to the European Court of Human Rights which ruled in 2005 that the ban breached the right to free elections under the European Convention on Human Rights. In summary, the Court had a relatively simple job. Having considered the case law, including Mathieu-Mohin and Clerfayt, the Court noted that imposing necessary and proportionate restrictions required for some justified reason was one thing; an outright ban another. Nothing in Article 3 of Protocol 1 permits a contracting state to the ECHR to impose this type of outright restriction on universal suffrage. In legal terms, there is nothing difficult about the judgement: it states that Article 3 of Protocol 1 was breached. Hirst and his legal team were awarded their costs. Hirst was not granted any damages for suffering or distress caused by the violation (he had claimed £5,000). The case was originally heard before 7 judges (the Fourth Section of the Court), who unanimously held that the UK was in breach on 30 March 2004. The UK appealed to the full court (the Grand Chamber of 17 judges) on 23 June 2004, and a majority decision against the UK (12 to 5) was published on 6 October 2005.
The question then becomes one of enforcement. Once the Court has given its judgement, the matter is then referred to the Council of Ministers. There is no absolute sanction or power that can be applied to a ECHR contracting state that refuses to implement a judgement, but failure to implement a judgement rapidly becomes a political and diplomatic matter. Failure to implement a Court judgement is itself a breach of the ECHR (Article 46).
There is plenty that can be said about the Court’s decision in Hirst. Some have noted that the wording of Article 3 of Protocol 1 is expressed to be an undertaking, not an absolute right. However, as the UK has signed up to the ECHR, then it is, for as long as it wishes to be so, bound by decisions of the Court. It’s a simple question of the rule of law.
[For an interesting discussion on the law and politics of the Hirst case, we recommend the podcast of Carl Gardner and Mike Semple Piggott at CharonQC (see blogroll).]