Euro Rights Blog by Dr Howard Davis – ‘The Last Judicial Gasp? Judicial Enforcement of Human Rights and Prisoner Voting’
The long running saga of the voting rights of convicted prisoners in the United Kingdom took another twist in October 2013 with the United Kingdom Supreme Court’s decision in Chester v Secretary of State for Justice and McGeoch v Lord President of the Council  UKSC 63.
The Supreme Court accepted the principle, based on the European Court of Human Rights’ (ECtHR) decision in Hirst v United Kingdom (2) (2006) 42 EHRR 41 Grand Chamber (Hirst), that the UK’s ban on all convicted prisoners voting was a general, automatic and indiscriminate interference with prisoners’ right to vote and therefore violated article 3 of Protocol 1. However, it declined to grant any remedies under the Human Rights Act 1998. The Supreme Court also held that the inclusion of European Parliamentary and local government elections in the ban did not violate voting rights under European Union law; but the court held that, even if it did, any remedies would be very weak.
The case deals with a number of interesting points relating to human rights law, though none make a great difference to the substantive question of prisoners voting rights. These points do, however, demonstrate some of the difficulties of the judicial enforcement of human rights norms in the face of determined state opposition reflected in the views and decisions of an elected legislature on an issue where the ECtHR allows a wide margin of appreciation and where courts feel obliged to give considerable deference to the views of the elected Parliament. As Lady Hale suggests there is clearly a role for the courts to prevent legislatures from significant discrimination (e.g. on race grounds) or self-serving manipulation of the franchise, but where this is not the case they must ‘tread carefully’.
Section 2 HRA.
The Attorney General withdrew his earlier acceptance that the principles in Hirst had to be given effect in UK law. The Supreme Court, however, held that it was bound to follow the Hirst principle and therefore accept that the statutory voting ban was incompatible with Article 3, Protocol 1. There is clear and settled jurisprudence from the Grand Chamber and so there was no opportunity left for ‘dialogue’ (as had been the case in R v Horncastle  UKSC 14 which was a reaction to a Chamber decision). In Pinnock v Manchester  UKSC 6 the possibility, under section 2 HRA, of not giving further effect in UK law to a clear and principled statement by a Grand Chamber was seen as a possibility ‘in theory’. The language used in Chester (agreed with by all the justices) seems to make this possibility even more unlikely. Where Pinnock expressed this theoretical possibility as being in respect of Grand Chamber decisions which are ‘not inconsistent with some fundamental substantive or procedural aspect of our law [or which does not] overlook or misunderstand some argument or point of principle’, the Chester language seems stronger: ‘some truly fundamental principle of our law or some most egregious oversight or misunderstanding.’ The Attorney General’s attempt to show that the reasoning in Hirst came into this category failed: there was no opportunity for meaningful dialogue with Strasbourg and the principle did not cross that very high threshold of undermining some very fundamental principle of domestic law. This was also accepted by Lord Sumption despite his criticism of the Strasbourg Court.
Human Rights Act remedies.
As Lady Hale pointed out, this was not a case in which section 3 HRA could be used – the will of Parliament is clear and recently expressed. Likewise the Electoral Registration Officer who refused to put the prisoners on the electoral roll has a complete ‘defence’ under section 6(2) HRA.
The Supreme Court also refused to issue a declaration of incompatibility. There was nothing to be gained since a declaration had already been made in Smith v Scott 2007 SC 345. Thus the UK government already had the opportunity to ‘fast track’ a reform using section 10 HRA, which it had declined to do. The issue was now clearly with government and Parliament, and failure to introduce a remedial order is not unlawful (s6(6)HRA).
There was also the general question whether a section 4 declaration can, anyway, be issued where it is unlikely that the rights of the particular claimant have been violated. On this view the UK courts would be reluctant to declare legislation incompatible in the absence of a particular claimant whose rights have been violated. As Lady Hale said, section 4 does not forbid this, but courts should be slow to allow it given the danger of a ‘multitude of unmeritorious claims’.
The issue is that any Convention compliant scheme which allows some prisoners to vote but is also acceptable to the UK Parliament would almost certainly continue the ban in the case of the claimants (both convicted of murder). For Lady Hale, following President Wildhaber’s dissent in Hirst, this meant that the claimants were not ‘victims’ for the purpose of section 7 HRA. The Strasbourg court, which held that Hirst was directly affected by the voting ban, was in error. It had departed from its normal practice of refusing to decide issues in abstracto. Lord Mance, in Chester, expressing the majority view, followed the Grand Chamber and accepted that both claimants were ‘victims’ for the purposes of section 7 HRA. But being a ‘victim’ is merely a matter of standing, it gets the case heard. It does not follow that the ‘victim’s’ rights have been violated. The fact that Hirst and McGeoch would be unlikely to benefit from a Convention compliant lifting of the ban was another reason for not granting a section 4 declaration.
Under the constitutional balance inherent in the HRA, the issue of prisoner voting was now firmly a matter for Parliament .
European Union Law
Chester also confirms a restrictive approach to voting rights under EU law. McGeach drew upon treaty terms introduced by the Lisbon Treaty and also by reference to the Charter of Fundamental Rights. Chester, because of the date of his claim, could not; he could only rely on the pre-2009 situation. In any event the Supreme Court identified little if any change. The European Court of Justice in pre-Lisbon cases gave states a wide margin of appreciation over voting rights. Furthermore, it was clear that neither pre nor post-Lisbon voting provisions could be read as amounting to a free standing right to vote derived, in EU law, from the Convention. There is no hint of this in the case law. The pre-Lisbon voting right was confined to the duty on states not to discriminate against resident non-nationals who were citizens of the Union in the country’s franchise laws – whatever they were. According to the Supreme Court this is also the principle which explains the express right to vote in municipal and European Parliament elections introduced by the Lisbon Treaty in Articles 20(2)(b) and 22 TFEU – their point is the same – to prevent discrimination on grounds of nationality under the domestic laws, whatever they are.
Once this general point was established, that EU law does not provide a free standing right to vote in European and municipal elections, an anti-discrimination point (pursued by McGeach) had to fail. General anti-discrimination provisions apply in the sphere of EU law, but the ECJ has been clear that the issue of the franchise is within the competence of member states.
In any case, even if there is (as the Supreme Court held there was not) an incompatibility between the Representation of the People Act 1983 section 3 and directly effective rights of prisoners, it is hard to see what remedy would be available. This matter is explored in Chester. At the most (assuming that McGeach would have standing in EU law) there could be a generally phrased declaration of inconsistency. But such a declaration could well have been refused. It was unlikely that EU law would require a declaration in abstracto when both McGeach and Chester were legitimately imprisoned would be unlikely to benefit from a compatible reform of the law (a contrast, perhaps with the Equal Opportunities Commission in R v SS Employment v EOC  1 AC 1). Likewise the court would (had EU law granted a general right to vote) refused to have disapplied section 3 RPA; again this is because a wide reaching, though not total, ban on prisoners voting can be consistent with the right to vote assuming it would be correspond with Article 3 Protocol 1. Finally damages under the principles established in Factortame would be unlikely.
Finally, the Supreme Court was confident that its interpretation of the EU treaties was correct and that a reference to the CJEU was not required.
This case would appear to be the end of the road of judicial enforcement of Hirst in the UK courts. The matter is for the UK government and Parliament to sort out under the supervision of the Committee of Ministers. Judicial enforcement might return with the threat of the ECtHR to re-open cases and perhaps begin to award financial just satisfaction. The UK proposal on the procedure for giving effect to Hirst was accepted by the Committee of Ministers in 2012. This was for a bill, containing three options, to go through a period of pre-legislative scrutiny by a Joint Select Committee of Parliament. This committee was to report to by 31 October 2013, now changed to 18 December 2013. Following the report the government will propose legislative changes to Parliament. At its meeting on 26 September 2013 the Committee of Ministers urged the UK to act swiftly in order to have the changes in place by the time of the local and European elections in May 2014 (the Notes to this decision are more imperative – they ‘underline’ that ‘the next steps must be taken rapidly’ (emphasis added) if the May 2014 deadline is to be met.) Given that one of the three options is to continue with the total ban, the strength of feeling amongst many MPs of all parties against any extension of the franchise to prisoners and the slightly gung-ho attitude towards the Strasbourg institutions that has, perhaps, been engendered by some ministerial statements on this and other human rights issues, it is possible that the UK Parliament will fail to bring UK electoral law into compliance.
Dr Howard Davis is a Reader in Law at Bournemouth University.