What Do We Do About Prisoner Voting?

by Peter Smith:

Parliament has a choice: amend the blanket ban or defy the European Court of Human Rights. A constitutional show-down is almost inevitable.

Lest anyone thought the problem of the blanket ban on prisoner voting had gone away, the UK Supreme Court this week reminded politicians that they inevitably face another showdown with the European Court of Human Rights.

Prisoner VotingTwo men convicted of murder, Peter Chester and George McGeoch, had their challenges to the blanket ban dismissed unanimously by the Supreme Court justices. They tried to unpick the ban on two fronts: the well-trod claim that it is an infringement of human rights under the European Convention on Human Rights and the newer argument that the ban breaches a right to vote existing under EU law.

Lord Mance, giving judgment for the majority, concluded that “European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely”. In any event, had European law conferred any right to vote on the appellants, there would have been little effective remedy for them.

The Court was less robust on the matter of the European Convention. The Attorney-General reminded the Supreme Court it was only obliged to ‘take into account’ and not slavishly follow any judgment from Strasbourg when determining a question which has arisen in connection with a Convention right. Leaving aside the dubious jurisprudence of the European Court when, in the infamous case of Hirst v UK (No.2), it fashioned an individual right to vote from Article 3 of Protocol 1 to the Convention, the Government, Parliament and the courts face the tricky task of accommodating that judgment with British law. Dominic Grieve invited the Supreme Court to follow its own decision in R v Horncastle, where Lord Philips, the senior presiding judge, noted that

“There will be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court.”

The Attorney-General suggested that prisoner voting was one of these exceptional areas where Strasbourg simply got it wrong. That court erred when it did not give the UK sufficient space (the ‘margin of appreciation’) to develop its own attitude towards disenfranchising prisoners, and that the deeply-considered yet opposing views on prisoner voting entitled the UK to differ in its practice from other Convention states.

Let’s not forget either that the blanket ban has been considered on numerous occasions by Parliament – the Forfeiture Act 1870 and Representation of the People Acts in 1968, 1983 and 2000, for instance. Parliament has not been inflexible either: it has previously amended legislation to allow prisoners on remand and unconvicted-but-detained psychiatric patients to vote. Furthermore, the ban has massive Parliamentary – and thus democratic – support: MPs voted 234 to 22 in favour of the status quo in a backbench debate following the European Court’s decision in Hirst.

The Attorney-General further argued that every sentencing judge implicitly gives careful consideration to whether a person should be disenfranchised as a result of imprisonment when weighing up the nature and gravity of the offence when deciding in the first place whether any (and if so what) sentence of imprisonment is required.

Lord Mance unfortunately refused Mr Grieve’s invitation, in effect, to disagree with the European Court, partly because Strasbourg balanced Hirst with Scoppola v Italy (No.3), which indicated the parameters where the Court would find it “proportionate” for a member state to decide between prisoners with the vote and those without. There is a line of cases decided by the Strasbourg Court which sets out, broadly speaking, what is and is not acceptable, in that Court’s eyes, when states curtail prisoners from voting.

Lord Mance also cited the contested relationship between voting and punishment on the one hand, rehabilitation on the other: “it is possible to argue…that the objective of promoting civil responsibility and respect of law may be undermined, rather than enhanced, by denying serving prisoners the right to vote. The haphazard effects of an effectively blanket ban are certainly difficult to deny.” Despite acknowledging this, Mance concludes that prisoner voting isn’t important enough to Britain as a “stable democracy” for the Supreme Court to give Parliament and the Government the benefit of the doubt on the grounds suggested in Horncastle.

This is deeply frustrating. Contrary to the Prime Minister’s delight that this is a “great victory for common sense”, the UK Supreme Court is judging the inherent merits of prisoner voting and deciding that the matter isn’t important enough for Parliament and democracy to delineate the scope of enfranchisement.

The Parliamentary response to Hirst was to create a Bill committee investigating the options: disqualifying prisoners sentenced to 4 years or more in prison from voting; disqualifying those sentenced to more than 6 months, or keeping the status quo. The different options are likely to be put to MPs in a free vote later this year, with the committee recommending one or more options as a product of the extensive evidence that it has taken.

One possibility is that the committee proposes changing the law to 4 years or more, to be on the safe side (this is clearly within the interpretation of Convention law in Scoppola), and that MPs accept this to avoid further fuss and confrontation and bring the ‘dialogue’ between our Supreme Court and Strasbourg to an end. (Leave aside the fact that no court in this country or overseas has actually managed to explain satisfactorily why four years inside is proportionate or fair, just and reasonable as a cut-off. It just ‘is’.)

But what if MPs vote to maintain the blanket ban, given its popularity with the British people?

Jonathan Fisher QC of the Society of Conservative Lawyers proposes a solution. Parliament is sovereign and is not bound by Strasbourg: this is explicit in s.6 Human Rights Act 1998, which incorporated the Convention into domestic law in the first place. Article 46 of the Convention, obliging the UK to abide by decisions of the Court in cases to which it is a party, was not incorporated by the HRA in the first place. Thus, to Mr Fisher, a Parliamentary rejection would be the end of the matter. In any event, the Council of Europe is responsible for ‘punishing’ states which ignore Strasbourg decisions, and with a little diplomacy the UK can easily avoid sanction.

On the other hand, it does not further Britain’s interests in the world to be seen as ignoring unfavourable decisions of international tribunals pertaining to obligations the UK signed up to.

This takes the dispute straight back to the European Court’s decision in Hirst and whether, as Dominic Raab MP contends, the Court was acting beyond its powers to ‘interpret and apply’ the Convention when it passed judgment. Raab points to Hirst, Scoppola and Frodl v Austria to suggest that “the underlying direction and intention of the Strasbourg Court is to enfranchise all prisoners over time”. Parliament should therefore consider other approaches to the apparent clash between sovereignty and the rule of law, by introducing an explicit “democratic override”, renegotiating Britain’s membership of the Convention, or even withdrawing altogether (a distinctly unappetising suggestion given the lack of any workable draft ‘British Bill of Rights’).

In any case, given the general political context of the status of the Convention and, separately, the referendum on membership of the EU, readers should ready themselves for this debate to rumble on and on.


Peter Smith is a lawyer in London. He has previously worked for a Conservative Member of Parliament, and has written for Mercatornet.com and The Commentator.

NOTE: This article originally appeared at ConservativeHome. It was cross-posted with permission.

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