Nick Pickles’s blog

The possibility of prisoners being able to claim compensation for being denied the vote has riled many, with the media, commentators and politicans on all sides talking up the issue. Ken Clarke went as far as to question how MPs could vote against the bill, as it would require them to  “explain to their constituents, at a time like this, we’re spending money on compensating prisoners.”

Some on the left have criticised the Government’s decision to allow a free vote, with Ben Fox’s New Statesman post calling the free vote decision ‘cowardly.’ Their criticism seems based on the fact a free vote will probably mean the House of Commons voting down the proposal (more on that later) while entirely ignoring the fact that this issue arose with a judgement in 2005 and the last Labour Government did absolutely nothing to deal with it.

I won’t get into the arguments on whether or not prisoners should get the vote - I’d like to keep this post under a few thousand words - but the compensation line has me worried. Simply, I think it’s a myth.

There are roughly 2,500 legal actions pending on this issue, 1,500 of which are ‘frozen’ pending the UK Government’s action on the issue. There is a deadline for action, 6 months after the judgement of Greens and M.T. v. the UK.

That case didn’t test the law - it was based upon five years of inaction by the UK Government since the 2005 case of Hirst v the United Kingdom (No.2) - that was the case that established a blanket ban on prisoners voting violated the European Convention on Human Rights.

The only money awarded was €5,000 to cover costs and expenses. Given they won their case, this is hardly a legal revolution. To reach the £160m compensation figure reported and repeated, all 2,500 applicants would need to receive £64,000 each.

How likely is this?

Firstly, on costs: In Greens and M.T. v. the United Kingdom, the court ruled:

In future follow-up cases, in light of the above considerations, the Court would be likely to consider that legal costs were not reasonably and necessarily incurred and would not, therefore, be likely to award costs under Article 41. As a consequence of the Court’s approach to just satisfaction outlined above, an amendment to the electoral law to achieve compliance with the Court’s judgment in Hirst will also result in compliance with the judgment in the present cases and with any future judgment handed down in any of the comparable cases currently pending before the Court.

So, that seems fairly conclusive. What about punitive damages? In the Green judgement, the court was similarly clear:

“..as regards non-pecuniary damage, the Court recalls that it has in the past examined claims by applicants for punitive damages to reflect the particular character of the violations suffered by them and to serve as a deterrent in respect of violations of a similar nature by the respondent State, and for aggravated damages to reflect the fact that they were victims of an administrative practice. It has declined to make any such awards (see Akdivar and Others v. Turkey (Article 50), 1 April 1998, §§ 35-38, Reports 1998-II; Selçuk and Asker v. Turkey, 24 April 1998, §§ 116-119, Reports 1998-II; Menteş and Others v. Turkey (Article 50), 24 July 1998, §§ 18-21, Reports 1998-IV; Hood v. the United Kingdom [GC], no. 27267/95, §§ 88-89, ECHR 1999-I; and B.B. v. the United Kingdom, no. 53760/00, § 36, 10 February 2004).

Similarly, the Court does not consider that aggravated or punitive damages are appropriate in the present case.”

Again, fairly clear.

Where could compensation arise? There is one issue - that of the UK being in breach of it’s obligations under EU law. Were the EU to penalise the UK for its ongoing breach, the money would go to Brussels, not prisoners. (Although for many, myself included, this is no means an acceptable outcome, particularly given Russia is guilty of many more breaches.)

Finally, there is undoubtedly the potential for a bizarre legal state of affairs to emerge, as such:

One could argue if Parliament rejects a law intended to bring the UK into line with its obligations under the European Convention on Human Rights, that would be tantamount to an implied repeal of the Human Rights Act. That, in turn, could be interpreted by the Courts as Parliament asserting its supremacy to EU law (for the Lisbon treaty establishes the legal basis for the EU’s accession to the ECHR) and therefore implicitly repealing the European Communities Act 1972, and therefore Britain’s membership of the EU.

So, there you have it. Let’s debate the issue of prisoner voting, but doing it behind a veil of compensation figures only cheapens the arguments on all sides.