Hirst v United Kingdom (No 2)

John Hirst, a post-tariff prisoner then serving a sentence for manslaughter,[1] was prevented from voting by section 3 of the Representation of the People Act 1983,[2] which prohibits convicted prisoners from voting during their incarceration in a penal institution. In 2001, Hirst brought a case to the High Court, but the case was dismissed.[3] He lodged an appeal to the European Court of Human Rights at Strasbourg later in 2001.

In 2004, the Chamber of the European Court of Human Rights, recorded in Hirst v UK (No 2) (2006) 42 EHRR 41, ruled unanimously that there had been a violation of Hirst's human right under Article 3 of the First Protocol. The UK lodged an appeal to the Grand Chamber and on 6 October 2005 it found in favour of Hirst by a majority of twelve to five.[1] The Court found that the restriction of prisoners' voting rights violated Protocol 1, Article 3 of the European Convention on Human Rights;[2]

Once a case has been decided by the ECtHR, it falls to the Committee of Ministers to supervise execution of the Court's judgment. The British Government initially attempted to introduce legislation to give prisoners the right to vote.[4] This was rejected by the British Parliament and the Government has repeatedly stated since then that prisoners will not be given the right to vote in spite of the ruling.[5]

In the UK, the court was criticized for allegedly being over-intrusive in areas considered to be the domain of domestic courts and parliament; Kenneth Clarke and Dominic Grieve claimed that the court does not give sufficient margin of appreciation to states, a controversy being the court's requirement that the UK liberalize voting rights for prisoners,[6] a decision called "completely unacceptable" by David Cameron.[7] Cameron also claimed that the concept of human rights was being "distorted" and "discredited" by the ECtHR, because reasonable decisions made at a national level were not respected by the court.[8]

The starting point in the European Convention in article 1 is that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention" (emphasis added). The Court added:

"It follows from this provision that the States Parties are answerable for any violation of the protected rights and freedoms of anyone within their “jurisdiction” – or competence – at the time of the violation...

...However, it must be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State's international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is imputable...

...Even though it is not inconceivable that States will encounter difficulties in securing compliance with the rights guaranteed by the Convention in all parts of their territory, each State Party to the Convention nonetheless remains responsible for events occurring anywhere within its national territory.

Further, the Convention does not merely oblige the higher authorities of the Contracting States themselves to respect the rights and freedoms it embodies; it also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels...The higher authorities of the State are under a duty to require their subordinates to comply with the Convention and cannot shelter behind their inability to ensure that it is respected...

...The general duty imposed on the State by Article 1 of the Convention entails and requires the implementation of a national system capable of securing compliance with the Convention throughout the territory of the State for everyone. That is confirmed by the fact that, firstly, Article 1 does not exclude any part of the member States' “jurisdiction” from the scope of the Convention and, secondly, it is with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that member States are called on to show compliance with the Convention...The authorities of a territorial entity of the State are public-law institutions which perform the functions assigned to them by the Constitution and the law. In that connection, the Court reiterates that in international law the expression “governmental organisation” cannot be held to refer only to the government or the central organs of the State. Where powers are distributed along decentralised lines, it refers to any national authority exercising public functions".

[2009] ECHR 2260

• Disfranchisement
• Felony disenfranchisement

• Grand Chamber judgment