In this submission we focus on what is required to comply with the United Kingdom’s legal obligations and our analysis is based on our understanding of the relevant case law. The Commission has addressed only matters within its statutory competence. We have therefore not responded to every question in the call for evidence.
The Commission's Analysis
The Commission’s legal analysis is that a restatement of the existing ban (i.e. complete disenfranchisement of prisoners) would not satisfy the Committee of Ministers as effective implementation of the Hirst and Greens judgments. If that option were adopted the government would inevitably be vulnerable to further claims, including the many cases that are currently stayed by the ECtHR, and compensation would be likely to be awarded. However, the ECtHR has made clear in its judgment in Scoppola v Italy (No.3)  ECHR 868 (Scoppola), accepting the United Kingdom Government’s argument, that each state has a wide discretion as to how to regulate any ban so long as it does not constitute blanket disqualification. The Commission’s legal opinion is therefore that either options (a) or (b) in the draft Bill would now constitute effective implementation of the Hirst and Greens judgments.
If the government fails to implement those judgments at all, this would, on the Commission’s analysis of the case law, leave the United Kingdom open to claims before the ECtHR, and to further protracted litigation.
Last updated: 18 Jul 2016