We need to talk: 'democratic dialogue' and the ongoing saga of prisoner disenfranchisement

Abstract

Challenges to prisoner disenfranchisement in the United Kingdom have persisted for more than a decade, progressing through the domestic courts to the European Court of Human Rights and back again. The issue has been subject to a prolonged two-stage consultation. And yet, in spite of the decision in Hirst v UK (No 2) that the current disenfranchisement regime breaches the right of prisoners to vote, the governments in office since this decision have to date declined to introduce legislation to rectify the breach. This article considers the response of the United Kingdom’s domestic courts to this situation, focusing upon the general unwillingness of the courts to confront the government over the stalled reform process and the implications of this reluctance for the operation of the Human Rights Act 1998 (HRA). The prisoner enfranchisement cases give rise to important questions regarding the domestic courts’ discretion to re-interpret provisions so as to bring the law within the margin of appreciation and whether multiple declarations of incompatibility should be issued if the government fails to respond to the first in an appropriate and timely manner.