JUDGMENT
R (on the application of Chester) (Appellant) v
Secretary of State for Justice (Respondent)
McGeoch (AP) (Appellant) v The Lord President of
the Council and another (Respondents) (Scotland)
before
Lady Hale, Deputy President
Lord Hope
Lord Mance
Lord Kerr
Lord Clarke
Lord Sumption
Lord Hughes
JUDGMENT GIVEN ON
16 October 2013
Heard on 10 and 11 June 2013
Appellant (Chester) Respondent
Hugh Southey QC HM Attorney General
Richard Reynolds James Eadie QC
Jason Coppel QC
Tristan Jones
(Instructed by Chivers) (Instructed by Treasury
Solicitors)
Appellant (McGeoch) Respondent
Aidan O’Neill QC HM Attorney General
Christopher Brown
Tony Kelly
James Eadie QC
Ruth Crawford QC
Jason Coppel QC
(Instructed by Taylor &
Kelly)
(Instructed by Office of
the Advocate General of
Scotland)
LORD MANCE (with whom Lord Hope, Lord Hughes and Lord Kerr agree)
Summary
1. Two appeals are before the Court by prisoners who were convicted of
murder and sentenced to life imprisonment. In the case of the appellant Peter
Chester, the tariff period fixed expired many years ago, but he has not yet satisfied
the Parole Board that it is no longer necessary for the protection of the public that
he should be confined. In the case of the appellant George McGeoch, the
sentencing judge fixed a punishment part of 13 years which expired on 7 October
2011, but he has committed various intervening offences including violently
escaping from lawful custody in 2008 for which he received a seven and a half
year consecutive sentence. The result is that the earliest date on which McGeoch
could be considered for parole is July 2015.
2. Both the appellants claim that their rights have been and are being infringed
by reason of their disenfranchisement from voting. Chester’s claim for judicial
review was issued in December 2008 and relates to voting in United Kingdom and
European Parliamentary elections. It relies on Article 3 of Protocol No 1 (“A3P1”)
as incorporated into domestic law by the Human Rights Act 1998 and directly on
European Union law. Burton J and the Court of Appeal (Lord Neuberger MR,
Laws and Carnwath LJJ), [2010] EWCA Civ 1439, [2011] 1 WLR 14346,
dismissed Chester’s claim. They held that it was not the court’s role to sanction the
government for continuing delay in implementing the European Court of Human
Rights’ decision in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 or to
repeat the declaration of incompatibility issued by the Scottish Registration Appeal
Court in Smith v Scott 2007 SC 345 or issue advice as to the form which
compatible legislation might take. They held that European Union law raises no
separate issue.
3. McGeoch’s claim for judicial review was issued in February 2011 and
related to voting in local municipal and Scottish Parliamentary elections. It relies
solely on European Union law. The Extra Division dismissed the petition on the
ground that European Union law only conferred a right to vote in municipal
elections in a Member State on European Union citizens residing in a Member
State of which they were not nationals. It also considered that Scottish
Parliamentary elections were not for this purpose municipal elections. Before the
Extra Division McGeoch was refused permission to amend to include a complaint
relating to voting in European Parliamentary elections, but a corresponding
amendment was permitted by the Supreme Court by order of 15 October 2012.
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4. The following summarises my conclusions:
(A) Human Rights Act
In respect of Chester’s claim under the Human Rights Act, which
only relates to elections to the European and United Kingdom
Parliaments (para 2), I would decline the Attorney General’s
invitation to this Court not to apply the principles in Hirst v United
Kingdom (No 2) (2005) 42 EHRR 849 (“Hirst (No 2)”) and Scoppola
v Italy (No 3) (2012) 56 EHRR (paras 34-35) (“Scoppola”), but also
decline to make any further declaration of incompatibility with the
Convention rights (paras 39 – 42).
(B) European law
a. In respect of McGeoch’s and Chester’s claims under European law,
which can at most relate to elections to the European Parliament and
municipal authorities (paras 9, 45 and 46), I conclude 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 (paras 46-47, 58, 59, 63-64 and 68).
b. Had European law conferred any right to vote on which McGeoch
and Chester can rely:
i. the only relief that might have been considered would have
been a generally phrased declaration that the legislative
provisions governing eligibility to vote in European
Parliamentary and municipal elections in the United Kingdom
were inconsistent with European Community or Union law
but that would not have appeared appropriate in the particular
cases of Chester and McGeoch (para 72);
ii. the general ban on voting in European Parliamentary and
municipal elections could not have been disapplied as a whole
(para 73);
iii. it would not have been possible to read the RPA section 3 or
EPEA section 8 compatibly with European law (para 74);
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iv. the Supreme Court could not itself devise a scheme or
arrangements that would or might pass muster with European
law; that would be for Parliament (para 74);
v. neither of the appellants could have had any arguable claim
for damages in respect of any breach of European law which
may be involved in RPA section 3 and/or EPEA section 8
(paras 82-83).
(C) European Court of Justice
The resolution of these appeals does not necessitate a reference to
the European Court of Justice. In so far as it raises issues of
European law for determination, they are either not open to
reasonable doubt or involve the application by this Court to the facts
of established principles of European law (para 84).
(D) Both appeals fall therefore, in my opinion, to be dismissed (para 85).
Legislation
5. Entitlement to vote in parliamentary and local government elections in the
United Kingdom is governed by the Representation of the People Act 1983
(“RPA”). Section 1, as substituted by section 1 of the Representation of the People
Act 2000, provides that:
“(1) A person is entitled to vote as an elector at a parliamentary
election in any constituency if on the date of the poll he-
(a) is registered in the register of parliamentary electors for that
constituency;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is either a Commonwealth citizen or a citizen of the Republic of
Ireland; and
(d) is of voting age (that is, 18 years or over)….”
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Section 2 provides in similar terms in relation to local government elections, but
with the addition in (c) of the words “or a relevant citizen of the Union”, to meet
the requirements of what is now article 22(1) TFEU.
6. Section 3 of the Act, as amended by section 24 of and paragraph 1 of
Schedule 4 to the Representation of the People Act 1985, disenfranchises serving
prisoners, providing:
“Disfranchisement of offenders in prison etc
(1) A convicted person during the time that he is detained in a penal
institution in pursuance of his sentence or unlawfully at large when
he would otherwise be so detained is legally incapable of voting at
any parliamentary or local government election.
(2) For this purpose–
(a) ‘convicted person’ means any person found guilty of an offence
(whether under the law of the United Kingdom or not), ….., but not
including a person dealt with by committal or other summary process
for contempt of court; …
(c) a person detained for default in complying with his sentence shall
not be treated as detained in pursuance of the sentence…”
The effect of the last words of section 3(2)(a) and of section 3(2)(c) is to exclude
persons imprisoned for contempt of court or default in paying a fine.
7. Entitlement to vote in European Parliamentary elections is provided
domestically by the European Parliamentary Elections Act 2002 (“EPEA”). For
present purposes section 8(2) and (3) are relevant, and they confer such entitlement
on a person:
“(2) ….. if on the day of the poll he would be entitled to vote as an
elector at a parliamentary election in a parliamentary constituency
wholly or partly comprised in the electoral region, and—
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(a) the address in respect of which he is registered in the relevant
register of parliamentary electors is within the electoral region, or
(b) his registration in the relevant register of parliamentary electors
results from an overseas elector’s declaration which specifies an
address within the electoral region.”
The disenfranchisement enacted by RPA section 3 is thus extended to apply to
European Parliamentary elections.
8. Under the Scotland Act 1998, section 11(1), the persons entitled to vote as
electors at an election for membership of the Scottish Parliament in any
constituency are those who on the day of the poll would be entitled to vote as
electors at a local government election in an electoral area falling wholly or partly
within the constituency. In effect, RPA section 3 is extended to Scottish
Parliamentary elections.
9. A3P1 reads:
“The High Contracting Parties undertake to hold free elections at
reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the choice
of the legislature.”
The European Parliament is for this purpose a legislature within the meaning of
A3P1: see Matthews v United Kingdom (1999) 28 EHRR 361. So too is clearly the
Scottish Parliament, under the devolution arrangements instituted by the Scotland
Act, giving it wide-ranging legislative authority. Lord Hope described as such in
AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868,
para 46:
“The Scottish Parliament takes its place under our constitutional
arrangements as a self-standing democratically elected legislature. Its
democratic mandate to make laws for the people of Scotland is
beyond question. Acts that the Scottish Parliament enacts which are
within its legislative competence enjoy, in that respect, the highest
legal authority. The United Kingdom Parliament has vested in the
Scottish Parliament the authority to make laws that are within its
devolved competence.”
Page 6
The conclusion that the Scottish Parliament is a legislature within A3P1 was a
conclusion implicitly accepted by the European Court of Human Rights in McLean
and Cole v United Kingdom (Application Nos 12626/13 and 2522/12) (unreported)
given 11 June 2013, and was shared by Lord Reed in the Extra Division in the
present case (para 29 of his judgment). Conversely, a local government body or
municipal authority is not part of a legislature in the United Kingdom within
A3P1: McLean and Cole v United Kingdom.
10. Under European Union law, as it stands since 1 December 2009 when the
Treaty of Lisbon came into force, a wide range of provisions is potentially
relevant. Articles 6, 10 and 14 TEU provide:
“COMMON PROVISIONS
…..
6.1. The Union recognises the rights, freedoms and principles set out
in the Charter of Fundamental Rights of the European Union of 7
December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII
[Articles 51–54] of the Charter governing its interpretation and
application and with due regard to the explanations referred to in the
Charter, that set out the sources of those provisions.”
….
6.3. Fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms and
as they result from the constitutional traditions common to the
Member States, shall constitute general principles of the Union’s
law.
….
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PROVISIONS ON DEMOCRATIC PRINCIPLES
….
10. 1. The functioning of the Union shall be founded on
representative democracy.
10.2. Citizens are directly represented at Union level in the European
Parliament.
Member States are represented in the European Council by their
Heads of State or Government and in the Council by their
governments, themselves democratically accountable either to their
national Parliaments, or to their citizens.
10.3. Every citizen shall have the right to participate in the
democratic life of the Union. Decisions shall be taken as openly and
as closely as possible to the citizen.
10.4. Political parties at European level contribute to forming
European political awareness and to expressing the will of citizens of
the Union.
….
PROVISIONS ON THE INSTITUTIONS
….
14.3. The members of the European Parliament shall be elected for a
term of five years by direct universal suffrage in a free and secret
ballot.”
11. The pre-Lisbon Treaty predecessor of article 14.3 was article 190.1 and
190.4, reading:
Page 8
“190.1 The representatives in the European Parliament of the peoples
of the States brought together in the Community shall be elected by
direct universal suffrage.
….
4 The European Parliament shall draw up a proposal for elections by
direct universal suffrage in accordance with a uniform procedure in
all Member States or in accordance with principles common to all
Member States.”
12. To give effect to article 190.4 the Council of Ministers agreed the Act
concerning the election of the representatives of the European Parliament by direct
universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of
20 September 1976 (0J 1976 L 278, p 1), as amended by Council Decision
2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p
1) (“the 1976 Act”), which continues to apply in the post-Lisbon Treaty era. The
1976 Act provides inter alia by what is now article 7:
“Subject to the provisions of this Act, the electoral procedure shall
be governed in each Member State by its national provisions.
These national provisions, which may if appropriate take account of
the specific situation in the Member States, shall not affect the
essentially proportional nature of the voting system.”
13. Voting in European Parliamentary and municipal elections is dealt with
more specifically by Articles 20 and 22 TFEU in a Part headed “Nondiscrimination and Citizenship of the Union”:
“20.1. Citizenship of the Union is hereby established. Every person
holding the nationality of a Member State shall be a citizen of the
Union. Citizenship of the Union shall be additional to and not
replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the
duties provided for in the Treaties. They shall have, inter alia:
Page 9
(a) the right to move and reside freely within the territory of the
Member States;
(b) the right to vote and to stand as candidates in elections to the
European Parliament and in municipal elections in their Member
State of residence, under the same conditions as nationals of that
State;
(c) the right to enjoy, in the territory of a third country in which the
Member State of which they are nationals is not represented, the
protection of the diplomatic and consular authorities of any Member
State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the
European Ombudsman, and to address the institutions and advisory
bodies of the Union in any of the Treaty languages and to obtain a
reply in the same language.
….
22.1. Every citizen of the Union residing in a Member State of which
he is not a national shall have the right to vote and to stand as a
candidate at municipal elections in the Member State in which he
resides, under the same conditions as nationals of that State. This
right shall be exercised subject to detailed arrangements adopted by
the Council, acting unanimously in accordance with a special
legislative procedure and after consulting the European Parliament;
these arrangements may provide for derogations where warranted by
problems specific to a Member State.
2. Without prejudice to Article 223(1) and to the provisions adopted
for its implementation, every citizen of the Union residing in a
Member State of which he is not a national shall have the right to
vote and to stand as a Candidate in elections to the European
Parliament in the Member State in which he resides, under the same
conditions as nationals of that State. This right shall be exercised
subject to detailed arrangements adopted by the Council, acting
unanimously in accordance with a special legislative procedure and
after consulting the European Parliament; these arrangements may
provide for derogations where warranted by problems specific to a
Member State.”
Page 10
14. Article 52 of the Charter of Fundamental Rights (“CFR”) deals with the
Charter’s scope and interpretation:
“1. Any limitation on the exercise of the rights and freedoms
recognised by this Charter must be provided for by law and respect
the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may be made only if they are necessary
and genuinely meet objectives of general interest recognised by the
Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter for which provision is made in
the Treaties shall be exercised under the conditions and within the
limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights
and Fundamental Freedoms, the meaning and scope of those rights
shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive
protection.
4. In so far as this Charter recognises fundamental rights as they
result from the constitutional traditions common to the Member
States, those rights shall be interpreted in harmony with those
traditions.
5. The provisions of this Charter which contain principles may be
implemented by legislative and executive acts taken by institutions,
bodies, offices and agencies of the Union, and by acts of Member
States when they are implementing Union law, in the exercise of
their respective powers. They shall be judicially cognisable only in
the interpretation of such acts and in the ruling on their legality.
6. Full account shall be taken of national laws and practices as
specified in this Charter.
7. The explanations drawn up as a way of providing guidance in the
interpretation of this Charter shall be given due regard by the courts
of the Union and of the Member States.”
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15. The CFR includes the following provisions:
“Article 39 – Right to vote and to stand as a candidate at elections to
the European Parliament
1. Every citizen of the Union has the right to vote and to stand as a
candidate at elections to the European Parliament in the Member
State in which he or she resides, under the same conditions as
nationals of that State.
2. Members of the European Parliament shall be elected by direct
universal suffrage in a free and secret ballot.
Article 40 – Right to vote and to stand as a candidate at municipal
elections
Every citizen of the Union has the right to vote and to stand as a
candidate at municipal elections in the Member State in which he or
she resides under the same conditions as nationals of that State.”
16. The Explanations relating to the CFR, referred to in article 6.1 TEU, state
that article 39 CFR:
“applies under the conditions laid down in the Treaties, in
accordance with Article 52(2) of the Charter. Article 39(1)
corresponds to the right guaranteed in Article 20(2) [TFEU] (cf. also
the legal base in Article 22 [TFEU] for the adoption of detailed
arrangements for the exercise of that right) and Article 39(2)
corresponds to Article 14(3) [TEU]. Article 39(2) takes over the
basic principles of the electoral system in a democratic state.”
The Explanations state further that article 40 CFR:
“…corresponds to the right guaranteed by Article 20(2) [TFEU] (cf.
also the legal base in Article 22 [TFEU] for the adoption of detailed
arrangements for the exercise of that right). In accordance with
Article 52(2) of the Charter, it applies under the conditions defined
in these Articles in the Treaties.”
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European Convention on Human Rights
17. The general significance of A3P1 was summarised by Lord Collins in a
judgment with which all members of the Court agreed in R (Barclay) v Lord
Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464,
para 52. I need only to set out parts of his summary, omitting also some of the case
references:
“53. First, article 3 of the First Protocol enshrines a characteristic
principle of an effective democracy. ….
54. Second, although article 3 is phrased in terms of the obligation of
the contracting states to hold elections which ensure the free
expression of the opinion of the people rather than in terms of
individual rights, article 3 guarantees individual rights, including the
right to vote and the right to stand for election ….
55. Third, there is room for ‘implied limitations’ on the rights
enshrined in article 3, and contracting states must be given a wide
margin of appreciation in this sphere: Mathieu-Mohin v Belgium
(1987) 10 EHRR 1, para 52; Yumak v Turkey (2008) 48 EHRR 61,
para 109(ii).
56. Fourth, the content of the obligation under article 3 varies in
accordance with the historical and political factors specific to each
state; …..
57. Fifth, article 3 is not (by contrast with some other Convention
rights, such as those enumerated in articles 8 to 11) subject to a
specific list of legitimate limitations, and the contracting states are
therefore free to rely in general in justifying a limitation on aims
which are proved to be compatible with the principle of the rule of
law and the general objectives of the Convention: Yumak, para 109
(iii); Tanase v Moldova (Application No 7/08) (unreported) given 18
November 2008, para 105.
58. Sixth, limitations on the exercise of the right to vote or stand for
election must be imposed in pursuit of a legitimate aim, must not be
arbitrary or disproportionate, and must not interfere with the free
expression of the opinion of the people in the choice of the
legislature: Yumak, para 109(iii) to (iv).
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59. Seventh, such limitations must not curtail the rights under article
3 to such an extent as to impair their very essence, and deprive them
of their effectiveness. They must reflect, or not run counter to, the
concern to maintain the integrity and effectiveness of an electoral
procedure aimed at identifying the will of the people through
universal suffrage. Any departure from the principle of universal
suffrage risks undermining the democratic validity of the legislature
and the laws which it promulgates: Mathieu-Mohin, para 52; Yumak,
para 109(iv).”
18. The European Court of Human Rights has expressed its attitude to the
exclusion or limitation of prisoners’ voting rights in well-known decisions. Hirst v
United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012)
56 EHRR 663 each came first before a simple Chamber of seven judges and then
before a Grand Chamber composed of 17 judges. Hirst (No 2) was a claim
regarding his disenfranchisement from voting in United Kingdom Parliamentary
and local elections brought by a prisoner serving a life sentence in England for
manslaughter on the ground of diminished responsibility, whose tariff period had
expired without his release. Scoppola was a claim relating to disenfranchisement
under Italian law brought by a prisoner serving a sentence of 30 years
imprisonment for murder, attempted murder and other offences. In between these
two decisions came Greens and MT v United Kingdom (2010) 53 EHRR 710, in
which a simple Chamber applied the principles in Hirst (No 2) to complaints of
ineligibility to vote in both European and United Kingdom Parliamentary
elections. More recently simple Chambers have applied the principles in Hirst (No
2) and Scoppola in Anchugov and Gladkov v Russia (Application Nos 11157/04
and 15162/05) (unreported), 4 July 2013, and Söyler v Turkey (Application No
29411/07) (unreported), 17 September 2013.
19. In Greens the Strasbourg Court gave the United Kingdom six months to
introduce legislative proposals to amend RPA section 3, a period subsequently
extended first pending the decision in Scoppola and then to six months after the
Grand Chamber decision in Scoppola, delivered 22 May 2012. A draft Bill was
published for pre-legislative scrutiny on 22 November 2012 (Cm 8499) and a joint
select committee was established to undertake this and to report by 31 October
2013. As envisaged in Hirst (No 2), para 83, the United Kingdom government has
continued in this regard to liaise with the Committee of Ministers of the Council of
Europe, which has on 6 December 2012 accepted the draft bill and the
establishment of the committee as a legitimate means of implementing the
judgment in Greens, and at its meeting on 26 September 2013, noted with interest
that the pre-legislative scrutiny by the committee was now due to be completed by
31 October 2013, underlined the urgency of bringing the legislative process to a
conclusion, urged the United Kingdom authorities to provide information on the
proposed legislative timescale without further delay and decided to resume
Page 14
examination of the progress made at a meeting in December 2013. This ongoing
process was in June 2013 noted by the Strasbourg Court in its judgment in McLean
and Cole, paras 36-37, where the Court concluded that, in its light, there was
“nothing to be gained from examining applications concerning future elections at
this time” (para 37).
20. In Hirst (No 2), Greens and Scoppola the European Court of Human Rights
acknowledged the width of the margin of appreciation, or the “wide range of
policy alternatives”, which States enjoy in relation to voting rights (Hirst (No 2),
para 78, Greens, para 114 and Scoppola, para 83). In both Hirst (No 2) and
Scoppola the Grand Chamber acknowledged that disenfranchisement of convicted
serving prisoners “may be considered to pursue the aims of preventing crime and
enhancing civic responsibility and respect for the rule of law” (Hirst (No 2), paras
74-75 and Scoppola, para 90). In Hirst (No 2) the Grand Chamber (upholding the
earlier Chamber) held that the United Kingdom’s ban on prisoner voting was a
“general, automatic and indiscriminate restriction on a vitally important
Convention right” which fell “outside any acceptable margin of appreciation” and
was incompatible with A3P1 (para 82).
21. A powerfully constituted minority of the Grand Chamber (including its
President and future President) dissented. It took as its test whether the restrictions
on prisoner voting “impair the very essence of the right to vote or are arbitrary”
(para O-III5), and it pointed out that the Court should be very careful not to
assume legislative functions and that there was little consensus in Europe about
whether or not prisoners should have the vote (para O-III6). It noted that a multiparty Speakers Conference on Electoral Law in 1968 had unanimously
recommended that convicted persons should not be entitled to vote, and that the
RPA had been amended in 2000 only to permit remand prisoners and unconvicted
mental patients to vote. As to the majority comment that there was no evidence of
substantive debate in Parliament about the ban on convicted prisoners voting, the
minority disagreed, on the basis that it was “not for the Court to prescribe the way
in which national legislatures carry out their legislative functions”, and it must be
assumed that the RPA “reflects political, social and cultural values in the United
Kingdom” (para O-III7)
22. In Scoppola the United Kingdom intervened and the Attorney General
appeared before the Grand Chamber to ask that it reconsider Hirst (No 2). But, in
its judgment the Grand Chamber said (para 96) that it reaffirmed
“the principles set out by the Grand Chamber in the Hirst (No 2)
judgment, in particular the fact that when disenfranchisement affects
a group of people generally, automatically and indiscriminately,
based solely on the fact that they are serving a prison sentence,
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irrespective of the length of the sentence and irrespective of the
nature or gravity of their offence and their individual circumstances,
it is not compatible with [A3P1].”
However, the Grand Chamber (reversing the simple Chamber) found no
contravention in relation to the Italian law in issue in Scoppola. The only dissent,
by Judge Thór Björgvinsson, related to this conclusion. The Italian law was held
compatible with the Convention because disenfranchisement applied only to
sentences of three or more years, and lasted for only five years in the case of
sentences of three to five years, though for life in the case of longer sentences. The
Grand Chamber said that “As a result, a large number of convicted prisoners are
not deprived of the right to vote” (paras 106 and 108). Furthermore, any prisoner
could, three years after completing his sentence, apply for “rehabilitation”, which
would be granted upon his displaying “consistent and genuine good conduct” and
would “terminate any ancillary penalties and other penal effect of the conviction”
including disenfranchisement (Scoppola, paras 38 and 109).
23. The Grand Chamber specifically rejected the Chamber view that any
decision to deprive a prisoner of the vote should be taken by a court, saying (para
99):
“While the intervention of a judge is in principle likely to guarantee
the proportionality of restrictions on prisoners’ voting rights, such
restrictions will not necessarily be automatic, general and
indiscriminate simply because they were not ordered by a judge.
Indeed, the circumstances in which the right to vote is forfeited may
be detailed in the law, making its application conditional on such
factors as the nature or the gravity of the offence committed.”
24. Judge Thór Björgvinsson dissented because in his view the Grand Chamber
judgment in Scoppola “offer[ed] a very narrow interpretation of the Hirst
judgment” which stripped it of “all its bite” (para OI-16). In particular, the Grand
Chamber had in his view overlooked significant elements of the reasoning in Hirst
(No 2), notably the absence of any direct link between the facts of the individual
case and the ban on voting, the bluntness of the Italian legislation, “just like the
UK legislation”, and the absence of evidence that either the legislature or the
courts had weighed the proportionality of the ban (para 0I-13).
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Should the Supreme Court follow the Strasbourg case-law?
25. On the present appeal, the Attorney General (withdrawing a concession of
incompatibility made in the courts below) has made a fresh challenge to the
principles endorsed by the European Court of Human Rights in Hirst (No 2) and
Scoppola. He points out, correctly, that the Supreme Court is, under section 2(1) of
the Human Rights Act, obliged only to “take into account” any judgment or
decision of the European Court of Human Rights when determining a question
which has arisen in connection with a Convention right. In R v Horncastle [2009]
UKSC 14, [2010] 2 AC 373, para 11 Lord Phillips said that
“The requirement to ‘take into account’ the Strasbourg jurisprudence
will normally result in the domestic court applying principles that are
clearly established by the Strasbourg court. There will, however, 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.”
26. In Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104,
para 48 Lord Neuberger summarised the position:
“This court is not bound to follow every decision of the European
court. Not only would it be impractical to do so: it would sometimes
be inappropriate, as it would destroy the ability of the court to
engage in the constructive dialogue with the European court which is
of value to the development of Convention law: see e g R v
Horncastle [2010] 2 AC 373. Of course, we should usually follow a
clear and constant line of decisions by the European court: R (Ullah)
v Special Adjudicator [2004] 2 AC 323. But we are not actually
bound to do so or (in theory, at least) to follow a decision of the
Grand Chamber. As Lord Mance pointed out in Doherty v
Birmingham City Council [2009] AC 367, para 126, section 2 of the
1998 Act requires our courts to ‘take into account’ European court
decisions, not necessarily to follow them. Where, however, there is a
clear and constant line of decisions whose effect is not inconsistent
with some fundamental substantive or procedural aspect of our law,
and whose reasoning does not appear to overlook or misunderstand
Page 17
some argument or point of principle, we consider that it would be
wrong for this court not to follow that line.”
27. In relation to authority consisting of one or more simple Chamber decisions,
dialogue with Strasbourg by national courts, including the Supreme Court, has
proved valuable in recent years. The process enables national courts to express
their concerns and, in an appropriate case such as R v Horncastle, to refuse to
follow Strasbourg case-law in the confidence that the reasoned expression of a
diverging national viewpoint will lead to a serious review of the position in
Strasbourg. But there are limits to this process, particularly where the matter has
been already to a Grand Chamber once or, even more so, as in this case, twice. It
would have then to involve some truly fundamental principle of our law or some
most egregious oversight or misunderstanding before it could be appropriate for
this Court to contemplate an outright refusal to follow Strasbourg authority at the
Grand Chamber level.
28. The Attorney General’s submissions to us in this case have to be considered
in that light. Parliament has required this Court to “take into account” Strasbourg
case-law (Human Rights Act, section 2(1)(a)) and, “So far as it is possible to do
so”, to read and give effect to legislation in a way which is compatible with the
Convention rights (section 3(1)). Parliament has given this Court, if satisfied that
a provision of primary legislation is incompatible with a Convention right, power
to make a declaration of that incompatibility (section 4). The Act itself
contemplates that domestic legislation may not match this country’s international
obligations as established by case-law of the European Court of Human Rights.
29. It is against this background that the Supreme Court must consider whether
the Attorney General has made good his case that the Court should refuse to follow
and apply the approach taken by the European Court of Human Rights in Hirst (No
2) and Scoppola. The Attorney General took issue with any description of Hirst
(No 2) and Scoppola as “a clear and consistent line of decisions”. But, whatever
else may be said about their reasoning or its outcome, they both clearly stand for
the core proposition, directly applicable to the current general ban on convicted
prisoners’ voting, quoted in paras 20 and 22 above.
30. At the heart of the Attorney General’s submissions lies the wide margin of
appreciation which States have in this area, and the variety of legislative attitudes
in other States, some according with the United Kingdom’s. These were matters
which the European Court of Human Rights acknowledged, but in the Attorney
General’s submission failed to respect. In support of his submission the Attorney
General makes a number of points. First, the area is one where there is room (in
Laws LJ’s words in the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR
1436, para 32) for “deep philosophical differences of view between reasonable
Page 18
people”. In circumstances where the Grand Chamber accepted as a legitimate aim
of disenfranchisement “enhancing civic responsibility and respect for the rule of
law” (Scoppola, para 90), the United Kingdom was, as a participatory democracy,
entitled to withhold the vote from those serving sentences for offences sufficiently
serious to justify such a sentence, including those who, after their tariff period,
could not satisfy the Parole Board that it was “no longer necessary for the
protection of the public” that they should be confined (Crime (Sentences) Act
1997, section 28(6)(b)).
31. Secondly, the Grand Chamber in Hirst (No 2) (para 79) attached some
significance to a suggested lack of “evidence that Parliament [had] ever sought to
weigh the competing interests or to assess the proportionality of a blanket ban on
the right of a convicted prisoner to vote”, adding only:
“It may perhaps be said that, by voting the way they did to exempt
unconvicted prisoners from the restriction on voting, Parliament
implicitly affirmed the need for continued restrictions on the voting
rights of convicted prisoners. Nonetheless it cannot be said that there
was any substantive debate by members of the legislature on the
continued justification in light of modern day penal policy and of
current human rights standards for maintaining such a general
restriction on the right of prisoners to vote.”
32. The majority in Scoppola did not mention this factor, as Judge Thór
Björgvinsson, dissenting, pointed out at paras OI-09 and OI-15. Nevertheless, the
Attorney General submits that it is relevant that Parliament has, since Hirst (No 2),
conducted three formal debates, in Westminster Hall on 11 January 2011, in the
Commons on 10 February 2011, when MPs voted 234 to 22 to maintain the status
quo, and again in the Commons on 22 November 2012, after the Lord Chancellor
introduced a draft Bill, the outcome of which is not yet determined. Mindful of the
injunction in the Bill of Rights 1688 “That the Freedome of Speech and Debates or
Proceedings in Parlyament ought not to be impeached or questioned in any Court
or Place out of Parlyament”, the Attorney General did not suggest that we should
seek to evaluate the quality of the debate in Parliament. But he relied upon the fact
of debate and the continuation following it of the ban on prisoner voting as
underlining his submission that the Convention rights should be understood and
applied in a way respecting the choice made by the institution competent to make
such choices in a democracy. He pointed out that the Court in its recent decision in
Animal Defenders International v United Kingdom (Application No 48876/08, 22
April 2013) demonstrated the “considerable weight” that it was prepared to attach
to “exacting and pertinent reviews, by both parliamentary and judicial bodies, of
the complex regulatory regime governing political broadcasting in the United
Kingdom and to their view that the general measure [prohibiting religious or
political advertising on radio and television] was necessary to prevent the
Page 19
distortion of crucial public interest debates and, thereby, the undermining of the
democratic process” (para 116).
33. Thirdly, the Attorney General argues, it was fallacious to treat the United
Kingdom ban as affecting a “group of people generally, automatically and
indiscriminately”, simply because the ban was based solely on the fact that they
are serving a prison sentence, irrespective of the length of the sentence and
irrespective of the nature or gravity of their offence and their individual
circumstances. Any rule of law affects a group of people defined by its terms. If a
group is rationally defined, there is no reason why there should necessarily be
exceptions. As the Grand Chamber pointed out in relation to the Italian legislation
in Scoppola (para 106), so also in the United Kingdom a sentencing court takes
into account the nature and gravity of the offence as well as individual
circumstances when deciding in the first place whether any and if so what sentence
of imprisonment is required. As a result, only 8% of convicted offenders go to
prison in England, 15% in Scotland. The group affected is confined to convicted
prisoners and so excludes those in prison on remand awaiting trial as well as
hospital detainees. Further, within the group of convicted prisoners, the ban does
not extend to those in prison for contempt or default in paying fines.
34. Despite the Attorney General’s forceful submissions, I do not consider that
it would be right for this Court to refuse to apply the principles established by the
Grand Chamber decisions in Hirst (No 2) and Scoppola consistently with the way
in which they were understood and applied in those decisions. The Grand Chamber
in Scoppola was prepared to give the Italian legislator a greater margin of
manoeuvre than one would have expected from its previous decision in Hirst (No
2). But this was on the basis that the Italian law did not involve a blanket ban in
respect of all or almost all convicted prisoners. It excluded those convicted of
“minor” offences (involving less than three years imprisonment), and it had a two
step gradation in the length of the ban according to whether the sentence was for
less or for more than five years imprisonment. As a result “a large number of
convicted prisoners” had the vote. Furthermore, there was the possibility of
rehabilitation for “consistent and genuine good conduct” displayed for three years
after release. Nothing in Scoppola therefore suggests that the Grand Chamber
would revise its view in Hirst (No 2) to the point where it would accept the United
Kingdom’s present general ban. There is on this point no prospect of any further
meaningful dialogue between United Kingdom Courts and Strasbourg.
35. I would also reject the suggestion that the Supreme Court should refuse to
apply the principles stated in the Strasbourg case-law in the present circumstances.
Deep though the “philosophical differences of view between reasonable people”
may be on this point, it would in my opinion exaggerate their legal and social
importance to regard them as going to “some fundamental substantive or
procedural aspect of our law”: see the citation from Pinnock in para 26 above.
Page 20
While the diversity of approach in this area within Europe derives from different
traditions and social attitudes, it makes it difficult to see prisoner
disenfranchisement as fundamental to a stable democracy and legal system such as
the United Kingdom enjoys. It is possible to argue, as the Canadian Supreme Court
did in Sauvé v Canada (No 2) [2002] 3 SCR 519 that the objective of promoting
civic responsibility and respect for the 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. As the Grand Chamber
observed in Hirst (No 2) (para 77) “it … includes a wide range of offenders and
sentences, from one day to life and from relatively minor offences to offences of
the utmost gravity.” The Grand Chamber may have had in mind that, although
minor offences involve shorter periods of disenfranchisement, the effect is more
likely to be haphazard, depending as it must upon the timing of elections.
Application of the principles in Hirst (No 2) and Scoppola
36. This brings me to the effect of the principles in Hirst (No 2) and Scoppola
in the present cases. Chester’s claim, which relates to voting in European
Parliamentary elections, is based directly on the Convention rights as well as on
EU law. The first question is therefore whether he is a “victim” capable of
bringing a claim against the respondents under the Human Rights Act. Section 7 of
the Act provides:
“(1) A person who claims that a public authority has acted (or
proposes to act) in a way which is made unlawful by section 6(1)
may—
(a) bring proceedings against the authority under this Act in the
appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal
proceedings,
but only if he is (or would be) a victim of the unlawful act.
….
(3) If the proceedings are brought on an application for judicial
review, the applicant is to be taken to have a sufficient interest in
Page 21
relation to the unlawful act only if he is, or would be, a victim of that
act.
(4) If the proceedings are made by way of a petition for judicial
review in Scotland, the applicant shall be taken to have title and
interest to sue in relation to the unlawful act only if he is, or would
be, a victim of that act.
….
(7) For the purposes of this section, a person is a victim of an
unlawful act only if he would be a victim for the purposes of Article
34 of the Convention if proceedings were brought in the European
Court of Human Rights in respect of that act.”
37. In Hirst (No 2), the majority rejected a submission by the United Kingdom
Government that the Chamber “had assessed the compatibility of the legislation
with the Convention in the abstract without consideration of whether removal of
the vote from the applicant as a person convicted of a serious offence and
sentenced to life imprisonment disclosed a violation.” It said (para 72) that Hirst’s
complaint was
“in no sense an actio popularis. He was directly and immediately
affected by the legislative provision of which complaint is made and
in these circumstances the Chamber was justified in examining the
compatibility with the Convention of such a measure, without regard
to the question whether if the measure had been framed otherwise
and in a way which was compatible with the Convention, the
applicant might still have been deprived of the vote. …. It would not
in any event be right for the Court to assume that, if Parliament were
to amend the current law, restrictions on the right to vote would
necessarily still apply to post-tariff life prisoners or to conclude that
such an amendment would necessarily be compatible with Article 3
of Protocol No 1.”
This was another point on which the minority disagreed, observing the Court’s
task was “not normally to review the relevant law and practice in abstracto” and
that it was “in our opinion, difficult to see in what circumstances restrictions on
voting rights would be acceptable, if not in the case of persons sentenced to life
imprisonment” (para O-III8).
Page 22
38. Taking the majority approach, Chester is a victim for the purposes of
section 7 of the Human Rights Act, but this means that he satisfies a pre-condition
to, not that he is necessarily entitled to any particular relief in, a complaint about
the general disenfranchisement of prisoners from voting in United Kingdom and
European Parliamentary elections which results from EPEA section 8(2) and (3),
read with RPA section 3. He claims a declaration that both RPA section 3 and
EPEA section 8(2) are incompatible with A3P1. (I note that, in contrast, under
European Union law, his primary submission in relation to EPEA section 8(2) is
that it can be rendered compatible with European Union law by reading in an
additional right to vote in European Parliamentary elections “if necessary to
comply with European Union law”.)
39. The incompatibility of RPA section 3 with A3P1 was recognised by the
Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration
of incompatibility. That declaration was properly made in the case of a convicted
person sentenced to five years’ imprisonment for being concerned with supply of
controlled drugs. It entitled the Government to use the remedial order provisions
contained in section 10 of the Human Rights Act. The Government decided not to
do this. The issue is now however before the United Kingdom Parliament and
under active consideration in the light of the decisions in Hirst (No 2), Greens and
Scoppola. Further, it is clear from Greens (para 18 above) and the Attorney
General accepts that EPEA section 8 is, in relation to European Parliamentary
elections, as incompatible with A3P1 as RPA section 3 is, in relation to United
Kingdom Parliamentary elections. A declaration is a discretionary remedy, both
generally and under the Human Rights Act 1998, section 4 (4). There is in these
circumstances no point in making any further declaration of incompatibility. On
this I am in agreement with both Burton J at first instance, [2009] EWHC 2923
(Admin), and the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436.
The Strasbourg Court’s own decision in McLean and Cole to defer consideration
of applications concerning future elections in the light of the ongoing
Parliamentary process is also consistent with this view.
40. Further, it can, I consider, now be said with considerable confidence that
the ban on Chester’s voting is one which the United Kingdom Parliament can,
consistently with the Convention right, and would maintain, whatever amendments
it may be obliged to make or may make to allow any prisoners detained for
different reasons or periods to vote. In the original Chamber decision in Hirst
(2004) 38 EHRR 825, reference was made to the continuation of the ban on voting
after the expiry of the tariff period in the case of a life prisoner as an “additional
anomaly” (para 49). Nevertheless, the Chamber went on to say that it could not
“speculate” as to whether Hirst, whose tariff had expired, “would still have been
deprived of the vote even if a more limited restriction on the right to [sic] prisoners
to vote had been imposed, which was such as to comply with the requirements of
[A3P1]” (para 51). It is notable that the majority in the Grand Chamber in Hirst
Page 23
(No 2) did not endorse this reference in para 49 of the simple Chamber’s judgment
to an additional anomaly, saying only that it “would not in any event be right for
the Court to assume that, if Parliament were to amend the current law, restrictions
on the right to vote would necessarily still apply to post-tariff life prisoners or to
conclude that such an amendment would necessarily be compatible with [A3P1]”
(para 72). Only in a concurring opinion of Judge Caflisch did he raise the point,
going so far as to say that “this may be the essential point for the present case”
(para O-17(d)). His opinion does not appear to have been shared by other judges,
and must now in any event be seen in the light of the decision in Scoppola,
accepting that a lifelong ban on voting by prisoners sentenced for five or more
years was legitimate. The additional fact that it was subject to removal after three
years had elapsed from release, “provided that the offender has displayed
consistent and genuine good behaviour” does not appear to have been critical to
this conclusion; but, however that may be, it points strongly in favour of a view
that it can be legitimate to withhold a prisoner’s voting rights until “satisfied that it
is no longer necessary for the protection of the public that the prisoner should be
confined”.
41. The Grand Chamber’s reasoning in its very recent decision in Vinter v
United Kingdom (Application Nos 66069/09, 130/10 and 3896/10; 9 July 2013),
which post-dated submissions in this case, is also worth noting for its explanation
of detention during a post-tariff period by reference to core aims of imprisonment:
“108. First, a life sentence does not become irreducible by the mere
fact that in practice it may be served in full. No issue arises under
Article 3 if a life sentence is de jure and de facto reducible ….. In
this respect, the Court would emphasise that no Article 3 issue could
arise if, for instance, a life prisoner had the right under domestic law
to be considered for release but was refused on the ground that he or
she continued to pose a danger to society. This is because States
have a duty under the Convention to take measures for the protection
of the public from violent crime and the Convention does not
prohibit States from subjecting a person convicted of a serious crime
to an indeterminate sentence allowing for the offender’s continued
detention where necessary for the protection of the public ……
Indeed, preventing a criminal from re-offending is one of the
‘essential functions’ of a prison sentence ….. This is particularly so
for those convicted of murder or other serious offences against the
person. The mere fact that such prisoners may have already served a
long period of imprisonment does not weaken the State’s positive
obligation to protect the public; States may fulfil that obligation by
continuing to detain such life sentenced prisoners for as long as they
remain dangerous …..” [case references omitted]
Page 24
42. In Greens, the Court noted (para 113) that the Grand Chamber had
emphasised in Hirst (No 2) that
“there are numerous ways of organising and running electoral
systems and a wealth of differences, inter alia, in historical
development, cultural diversity and political thought within Europe
which it is for each contracting state to mould into their own
democratic vision. The Court recalls that its role in this area is a
subsidiary one: the national authorities are, in principle, better placed
than an international court to evaluate local needs and conditions
and, as a result, in matters of general policy, on which opinions
within a democratic society may reasonably differ, the role of the
domestic policy-maker should be given special weight.”
See also Scoppola, para 83 and Söyler, para 33. Within the domestic legal context,
it is now therefore for Parliament as the democratically elected legislature to
complete its consideration of the position in relation to both RPA section 3 and
EPEA section 8. There is no further current role for this Court, and there is no
further claim, for a declaration or, in the light of the incompatibility, for damages
which the appellant Chester can bring.
European law
43. I turn to the position under European Community and now Union law.
Before Burton J and the Court of Appeal, and reflecting no doubt the argument
before those courts, any claim under European Union law by Chester was treated
as effectively consequential on the incompatibility of the ban with A3P1, and
attracted no separate analysis. Bearing in mind the date of Chester’s claim for
judicial review (December 2008), he is also unable to rely upon European law as it
stands after 1 December 2009 under the TEU and TFEU, as a result of the Treaty
of Lisbon. This difficulty is not overcome by maintaining that his claim related to
forthcoming elections. It still required to be viewed in the light of the law when it
was brought.
44. At that date, the Charter of Fundamental Rights did not have direct legal
force, so that there was no equivalent of article 6.1 TEU. The predecessor of article
6.3 TEU was article 6.2 of the pre-December 2009 TEU reading:
“The Union shall respect fundamental rights, as guaranteed by the
[Human Rights] Convention and as they result from the
Page 25
constitutional traditions common to the Member States, as general
principles of Community law.”
The predecessor of article 14.3 TEU was article 190.1 and 4 of the Treaty on the
European Community (“EC”), set out in para 11 above. Article 22.1 and 22.2 had a
precise equivalent in article 19.1 and 19.2 EC, but the predecessor of article 20
was article 17 EC, reading simply:
“17.1 Citizenship of the Union is hereby established. Every person
holding the nationality of a Member State shall be a citizen of the
Union. Citizenship of the Union shall complement and not replace
national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this
Treaty and shall be subject to the duties imposed thereby”.
45. McGeoch’s claim under European Union law was on the other hand issued
in early 2011 and relates to voting in local as well as Scottish and European
Parliamentary elections. It therefore opens up all possible avenues for exploration
under current European Union law. However, there is nothing in European Union
law which can entitle McGeoch to complain in respect of his inability to vote in
Scottish Parliamentary elections. European Union law refers in various contexts,
which have already been set out in this judgment, to voting in European
Parliamentary elections and in “municipal” elections, and to no other elections. It
is obvious that Scottish Parliamentary elections fall within neither category: see
also what I have already said in para 9 above. That municipal elections are local
government elections at a lower level of government, closer to people and with a
more direct responsibility for service delivery, is furthermore consistent with the
nature of the units found (though in the case of Scotland, not yet updated) in the
annex to Council Directive 94/80/EC, which lays down detailed arrangements for
the exercise of the right to vote and stand in municipal elections by Union citizens
residing in a Member State of which they are not nationals.
46. The submissions under European Union law are put at various different
levels. Mr Aidan O’Neill QC for McGeoch concentrated upon articles 20 and 22
TFEU, read with articles 39 and 40 CFR. Mr Southey for Chester adopted Mr
O’Neill’s submissions, but relied in addition upon the more general provisions of
articles 6.3 (or its predecessor article 6.2 in the pre-December 2009 TEU), 10 and
14.3 TEU (or the latter’s predecessor articles 190.1 and 4 EC). In his submission,
the effect of these articles was, at the least, to incorporate into European Union law
in relation to voting in European Parliamentary elections the principles recognised
under Strasbourg case-law (Hirst (No 2) and Scoppola) in relation to national
Page 26
legislatures. Quite possibly, he submitted, their effect may even be to lead the
Court of Justice to go further than Strasbourg case-law by prohibiting on a more
extensive basis any limitations on the democratically based universal suffrage to
which the Treaties refer.
47. If Mr Southey’s wider submission with regard to the wholesale importation
into European Community or Union law of the Strasbourg jurisprudence regarding
the right to vote were valid, it would be surprising to find no hint of this in any
Court of Justice judgment. That is particularly so with regard to Case C-145/04
Spain v United Kingdom [2006] ECR I-7917 and Case 300/04 Eman and Sevinger
v College van Burgemeester en Wethouders van den Haag [2006] ECR I-8055,
despite the difference in the actual issues. Mr Southey’s submission would also
mean that a case such as Matthews v United Kingdom (1999) 28 EHRR 361 could,
now at least, be pursued in either of two parallel forums.
Spain v United Kingdom and Eman and Sevinger
48. The judgments in Spain v United Kingdom and Eman and Sevinger were
both issued on the same day (12 September 2006) following an opinion of
Advocate General Tizzano (dated 6 April 2006) which had covered both cases.
The judgments contain discussion of the scope and effect of European Treaty law
which bears on both Mr Southey’s wider and Mr O’Neill’s narrower submissions.
In Spain v United Kingdom the first issue was whether it was legitimate under
European law for the United Kingdom to extend the franchise in European
Parliamentary elections to qualifying Commonwealth citizens, as well as European
Union citizens, registered in the Gibraltar register. The Court held (para 78) that, in
the then current state of Community law
“the definition of the persons entitled to vote and to stand as a
candidate in elections to the European Parliament falls within the
competence of each Member State in compliance with Community
law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not
preclude the Member States from granting that right to vote and to
stand as a candidate to certain persons who have close links to them,
other than their own nationals or citizens of the Union resident in
their territory.”
49. In the course of its reasoning, the Court said:
Page 27
“65 …. Articles 189 EC and 190 EC do not expressly and precisely
state who are to be entitled to the right to vote and to stand as a
candidate for the European Parliament.
66 … [Article 19 EC] is confined to applying the principle of nondiscrimination on grounds of nationality to the exercise of that right,
by providing that every citizen of the Union residing in a Member
State of which he is not a national is to have the right to vote and to
stand as a candidate in elections to the European Parliament in the
Member State in which he resides, under the same conditions as
nationals of that State.
….
76 …. Article 19(2) EC …. is confined, as pointed out in paragraph
66 above, to stating a rule of equal treatment between citizens of the
Union residing in a Member State so far as concerns that right to
vote and stand for election. While that provision, like Article 19(1)
EC relating to the right of Union citizens to vote and to stand as a
candidate at municipal elections, implies that nationals of a Member
State have the right to vote and to stand as a candidate in their own
country and requires the Member States to accord those rights to
citizens of the Union residing in their territory, it does not follow that
a Member State in a position such as that of the United Kingdom is
prevented from granting the right to vote and to stand for election to
certain persons who have a close link with it without however being
nationals of that State or another Member State.”
The Court also referred to the provisions of the 1976 Act (paras 67 to 69).
50. In paras 90 to 97 the Court of Justice addressed Spain’s second plea that the
United Kingdom had, in the arrangements made to enable the Gibraltar electorate
to vote, gone further than required to comply with the European Court of Justice’s
judgment in Matthews v United Kingdom. It recited in this connection that it was
the United Kingdom’s obligation to comply with Matthews and that in the light of
the “case-law of the European Court of Human Rights and the fact that that Court
has declared the failure to hold elections to the European Parliament in Gibraltar to
be contrary to [A3P1] …., the United Kingdom cannot be criticised” for adopting
the necessary legislation.
Page 28
51. In Eman and Sevinger the Court was concerned with the legitimacy under
European Union law of a provision of Dutch law which conferred the right to vote
in European Parliamentary elections upon Dutch nationals residing in the
Netherlands or abroad except in Aruba and the Netherlands Antilles. After
repeating (para 45) that “in the current state of Community law, the definition of
the persons entitled to vote and to stand for election falls within the competence of
each Member State in compliance with Community law”, the Court opened a
possible role for European law in the instant case by continuing
“It must, however, be ascertained whether that law precludes a
situation such as that in the main proceedings, in which Netherlands
nationals residing in Aruba do not have the right to vote and to stand
as a candidate in elections to the European Parliament.”
52. In relation to articles 189 and 190 EC, the Court repeated its words in para
65 of Spain v United Kingdom. It also repeated (para 53) that
“Article 19(2) EC … is confined to applying the principle of nondiscrimination on grounds of nationality to that right to vote and
stand for election, by stipulating that every citizen of the Union
residing in a Member State of which he is not a national is to have
the right to vote and to stand as a candidate in elections to the
European Parliament in the Member State in which he resides, under
the same conditions as nationals of that State.”
53. The Court further noted that the European Court of Human Rights had
accepted that the right to vote might be limited by reference to residence.
However, the Court found in “the principle of equal treatment or nondiscrimination, which is one of the general principles of Community law” a basis
for comparing the position of “a Netherlands national resident in the Netherlands
Antilles or Aruba and one residing in a non-member country” (paras 57-58) and
for concluding that the Dutch Government had not demonstrated an objective
justification for the different treatment of these two persons (para 60).
54. Earlier in its judgment, the Court of Justice had observed that A3P1 did not
apply to Aruba; unlike the case with Gibraltar, the European Treaties have no
application there, so the European Parliament could not be regarded as the Aruba
“legislature” (para 48). But the Court’s decision was based on the fact that the
complainants held Dutch nationality and were as such citizens of the Union under
article 17(1) EC, and entitled to enjoy the rights conferred by the Treaty under
article 17(2). They succeeded under the general European legal principle of nondiscrimination.
Page 29
55. In Spain v United Kingdom the Court was thus concerned with Gibraltar
which is within the territorial scope of both the Community and the European
Convention on Human Rights, but with voting rights which the United Kingdom
had conferred on persons who were not United Kingdom nationals for the purposes
of Community law. The Court had nonetheless to consider the nature of the United
Kingdom’s obligation to extend the franchise in European Parliamentary elections
to Gibraltar. In Eman and Sevinger, the Court was concerned with Aruba which is
outside the territorial scope of the Community, but within the territorial scope of
the European Convention on Human Rights (by the combination of declarations
dated 29 November 1954 and 24 December 1985 deposited by the Netherlands
with the Council of Europe), and with voting rights which had been withheld from
persons who were citizens of the European Union.
56. What is notably absent from the Court of Justice’s judgments in both Spain
v United Kingdom and Eman and Sevinger is any suggestion that, by reason of
article 6.2 of the pre-December 2009 TEU and articles 17 and 190 EC, the
European Treaties confer on citizens of the Union an individual right to vote, the
scope and conditions of which must be measured by reference to the principles
established in European Court of Human Rights jurisprudence, such as Hirst (No
2) and Scoppola. If available, that could have been advanced as a reason why it
was obligatory under European Community law for the United Kingdom to take
steps to enable the Gibraltar electorate to vote. Instead, the reason given was the
United Kingdom’s Council of Europe obligations to comply with Strasbourg
decisions: see para 49 above. Likewise, in Scoppola there was no suggestion that
as Union citizens the claimants were under Community law entitled to enjoy an
individual right to vote, complying with the principles established by European
Court of Human Rights jurisprudence.
57. Advocate General Tizzano in his opinion for these two cases had adopted
much broader reasoning which the Court in its judgments was careful not to
endorse. He would have “inferred from Community principles and legislation as a
whole …. that there is an obligation to grant the voting rights in question to
citizens of the Member States and, consequently, to citizens of the Union” (para
67), deriving this (para 69) from
“the principles of democracy on which the Union is based, and in
particular, to use the words of the Strasbourg Court, the principle of
universal suffrage which ‘has become the basic principle’ in modern
democratic States [FN: Eur. Court H.R. Mathieu-Mohin and Clerfayt
v Belgium, judgment of 2 March 1987 …. , Hirst v United Kingdom
(No 2), …. 30 March 2004] and is also codified within the
Community legal order in Article 190(1) EC and Article 1 of the
1976 Act, which specifically provide that the members of the
European Parliament are to be elected by ‘direct universal suffrage’.”
Page 30
He went on to say that this “general guidance” was “also confirmed by the fact that
the right in question is a fundamental right safeguarded by [A3P1]”, and to
mention in a footnote that the text of article 6(2) “need merely be borne in mind”
(paras 70 to 71). Turning to Spain’s second criticism, Advocate General Tizzano
also derived from his conclusion that individual voting was a fundamental right of
citizens of the Union a converse conclusion that it was illegitimate for the United
Kingdom to deviate to any greater extent from its statement in what was then
Annex II of the 1976 Act that “The United Kingdom will apply the provisions of
this Act only in respect of the United Kingdom”. As stated in para 49 above, the
Court of Justice adopted quite different reasoning and reached an opposite
conclusion, based simply on the United Kingdom’s obligation to give effect to the
European Court of Human Rights’ ruling in Matthews.
58. The Court of Justice did not therefore endorse Advocate General Tizzano’s
broad approach, or import the Strasbourg jurisprudence into the general provisions
of Community and Union law referring to voting in European Parliamentary
elections. There was good reason for this. Eligibility to vote is under the Treaties
and the 1976 Act a matter for national Parliaments, one of considerable national
interest. There is no sign that the European Commission has ever sought to involve
itself in or take issue with voting eligibility in Member States or specifically with
the restrictions on prisoner voting which apply in a number of such States. The
Strasbourg jurisprudence operates as the relevant control, albeit one that has itself
proved in some respects controversial. It would not only unnecessarily duplicate
that control at the European Community or Union level, it could also lead to
further conflict and uncertainty. Hence the Court of Justice in Eman and Sevinger
confined its reasoning to a well-established core principle of Treaty law, that of
non-discrimination, in that case between different categories of Dutch national, to
which I shall return (paras 60-64 below). Further, even in the form into which they
have been shaped by the Treaty of Lisbon, it is notable that such provisions as the
European Treaties contain concerning individual voting rights are notably limited
in scope. They relate to the core Treaty concerns of equality between nationals or
Union citizens and freedom of movement within the European Union (see para 59
below). For all these reasons, I reject Mr Southey’s wider submission set out in
(paras 46-47 above).
Articles 20.2 and 22 TFEU
59. In Mr O’Neill’s submission, the changes effected by the Treaty of Lisbon
significantly altered the Treaty position considered in Spain v United Kingdom and
Eman and Sevinger. In those cases article 19 EC was explained as confined to
stating rules of equal treatment requiring Union citizens residing in Member States
of which they were not nationals to be able to vote and stand in municipal as well
as European Parliamentary elections “under the same conditions as nationals”. The
same must apply to the current equivalent, article 22 TFEU. But Mr O’Neill relies
Page 31
upon the introduction of the new article 20.2(b). This, he submits, is a selfstanding provision, expressly conferring the individual right to vote on citizens of
the Union in respect of European Parliamentary and municipal elections. In my
opinion, it is clear that that is not the effect of article 20.2(b). As its opening
sentence proclaims, article 20 deals with the enjoyment of rights provided in the
Treaties. What follow are some of the basic rights so enjoyed. They all have a
supra-national element. Article 20.2(b) is thus expressly limited to recording the
existence of the right of Union citizens to vote and stand in municipal and
European Parliamentary elections in their Member State of residence “under the
same conditions as nationals of that State”. The omission of express reference to
the fact that this is dealing with citizens resident in a State other than that of their
nationality is entirely understandable in the context of what was intended as a
concise summary. That fact is anyway implicit. The detailed Treaty provisions
regarding the rights to which article 20.2(b) refers are contained in article 22.1 and
22.2, which would on Mr O’Neill’s case in fact be not only redundant but also
positively misleading in their limitation to the situation of residence in a Member
State other than that of nationality. The position is further confirmed by articles 39
and 40 CFR, which again would be positively misleading in their limitation to that
situation, and by the Explanations to the CFR which explicitly equate articles 20.2
and 22: see para 16 above. There is no basis for or likelihood in Mr O’Neill’s
supporting submission that article 20.2(b) was expressly aimed at, in effect,
endorsing Advocate General Tizzano’s views as to where European Union law
was or should go in conferring individual rights. Had that been remotely intended,
quite different explicit language would have been used.
Non-discrimination
60. The other limb of Mr O’Neill’s submissions involves reliance on the
principle of non-discrimination applied in Eman and Sevinger. The infringement
there consisted in unequal treatment by Dutch law in relation to voting in
European Parliamentary elections by Netherlands nationals in comparable
situations. The most fundamental area in which this principle has always
manifested itself is in relation to discrimination on the grounds of nationality: see
article 7 of the original EEC Treaty, now article 18 TFEU, which provides:
“Within the scope of application of the Treaties, and without
prejudice to any special provisions contained therein, any
discrimination on the grounds of nationality shall be prohibited.”
But the principle has achieved much wider application. Article 13.1 EC (now
substantially reproduced as article 19.1 TFEU) provides:
Page 32
“Without prejudice to the other provisions of this Treaty and within
the limits of the powers conferred by it upon the Community, the
Council …. may take appropriate action to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age
or sexual orientation.”
61. Article 13 has been responsible for some well-known, if in some respects
controversial case-law. The Court of Justice has accepted that, although the Treaty
contemplates that the general principle of non-discrimination underlying article 13
will be implemented by directives, Member States will be bound thereby to
discontinue, disregard or set aside measures so far as they involve discrimination
on a basis contrary to article 13 at least after the time for transposition of such a
directive: Case C-555/07 Kükükdeveci v Swedex GmbH & Co KG [2010] 2 CMLR
33, para 61 and perhaps even when legislating in the area of the directive during
the period for transposition: Case C-144/04 Mangold v Helm [2005] ECR I-9981.
62. However, for the general principle of non-discrimination to apply, the
context must fall within the scope of Community or now Union law: see Mangold,
para 75, Case C-427/06 Bartsch v Bosch und Siemens Hausgeräte (BSH)
Altersfürsorge GmBH [2008] ECR I-7245, para 25, Kükükdeveci, para 23, Case C147/08 Römer v Freie und Hansestadt Hamburg [2013] CMLR 11, para 70, and
Craig and de Burca, EU Law: Text, Cases and Materials [OUP: 4th ed, 2008, p
891]. The only difficulty about Eman and Sevinger is to identify the link with
European law, once one has rejected the conclusion that European law recognises
all EU citizens as having under European law an individual right to vote in
European Parliamentary elections (paras 56 to 58 above). The general principle
was simply stated to be applicable in a context where, and on the basis that,
Netherlands nationals, who were under article 17.1 EC Union citizens, were being
treated unequally in comparable situations in relation to European Parliamentary
elections, having regard to the difference in treatment of Netherlands nationals
resident, on the one hand, in the Netherlands Antilles and Aruba and, on the other
hand, in other non-EU member countries: see in particular paras 45, 56 to 58 of the
Court’s judgment.
63. It is however a general principle of Strasbourg law under article 14 of the
Convention that additional rights falling within the general scope of any
Convention right for which the state has voluntarily decided to provide must in
that event be provided without discrimination: Belgian Linguistics Case (No 2)
(1968) 1 EHRR 252, 283, R (Clift) v Secretary of State for the Home Department
[2006] UKHL 54, [2007] 1 AC 484, paras 12, 17-18. This principle in my opinion
clearly underlies Eman and Sevinger. As the Court noted (para 53), article 19 EC
(now article 22 TFEU) only covered nationals resident in another Member State.
But the Dutch legislator had chosen to extend the right to vote to its nationals
resident outside any Member State – but not in the Dutch Antilles or Aruba. There
Page 33
was no justification for this different treatment of comparable situations in a
context which fell within the scope of European law, that is voting by nationals
residing outside their own member state.
64. Supporting this is also the consideration that the Court accepted that “the
definition of the persons entitled to vote and to stand … falls within the
competence of each Member State in compliance with Community law” (Spain v
United Kingdom, para 78, Eman and Sevinger, para 45). If the qualification “in
compliance with Community law” were meant to require scrutiny by reference to
European Community law of all national limitations affecting European
Parliamentary elections for their non-discriminatory quality even where no other
link with European law was established other than that the elections were
European Parliamentary elections, that could, depending upon the intensity of the
scrutiny, effectively erode the general principle that the Court was accepting.
Position if the principle of non-discrimination had been engaged
65. This brings me to consideration of the nature and intensity of the scrutiny
which would be required, if (contrary to my conclusion in paras 63-64) the
principle of non-discrimination were to be viewed as all-embracing in the manner
advocated by Mr O’Neill and Mr Southey. In both Strasbourg and Luxembourg
case-law, discrimination issues are customarily described as involving a two-stage
process, consisting of first the identification of an appropriate comparator and
then, if one is found, examination of the justification for any difference in
treatment: see e.g. Edward and Lane, European Union Law (EE, 2013) para 6.125,
citing numerous authorities. The exercise as presented is neither a unitary nor an
entirely open one, or a court would in every case be required to ascertain the
differences between two different situations and ask whether, assessing such
differences and their significance as best it could, it considered the differences in
their treatment to be fair or justified. There must be basic comparability before the
court embarks on considering justification. Thus, in Eman and Sevinger itself the
Court observed (para 57) that
“the principle of equal treatment or non-discrimination, which is one
of the general principles of Community law, requires that
comparable situations must not be treated differently and that
different situations must not be treated in the same way unless such
treatment is objectively justified…”
The principle was reiterated in Case C‑485/08 P, Gualtieri v European
Commission [2010] ECR I-3009, para 70 with reference to Eman and Sevinger as
Page 34
well as other cases including Case C-227/04 P Lindorfer v Council of the
European Union [2007] ECR I‑6767.
66. As the Court noted in Case C-267/06 Maruko v Versorgungsanstalt der
deutschen Bühnen [2008] ECR I-1757, para 73, it is for the national court to
determine whether two persons are in a comparable position. That does not
however mean an identical position. The referring court in Maruko identified a
gradual movement towards recognising equivalence of life partnership and
marriage, meaning that, although the two were not identical, persons of the same
sex could be regarded as being in a situation comparable to that of spouses so far
as concerns the survivor’s benefit at issue in that case. The Court of Justice in Case
147/08 Römer v Freie und Hansestadt Hamburg approved that approach, saying:
“41 Accordingly, the existence of direct discrimination, within the
meaning of the Directive, presupposes, first, that the situations being
weighed up are comparable.
42 In that regard, it should be pointed out that, as is apparent from
the judgment in Maruko … at [67]—[73], first, it is required not that
the situations be identical, but only that they be comparable and,
secondly, the assessment of that comparability must be carried out
not in a global and abstract manner, but in a specific and concrete
manner in the light of the benefit concerned.”
67. Gualtieri was an appeal from the General Court and provides a contrasting
example. The claimant complained that she received a lower daily allowance on
the basis of the proximity of her spouse’s residence to her place of secondment
than she would have done if she had been single, but living in a de facto union.
The Court upheld the General Court’s conclusion that the two situations were not
comparable, saying:
“75 …. it must be observed that, although de facto unions and
legally recognised unions, such as marriage, may display similarities
in certain respects, those similarities do not necessarily mean that
those two types of union must be treated in the same way.
76 In those circumstances, the decision to apply the criterion of
matrimonial legal status appears neither arbitrary nor manifestly
inappropriate in relation to the objective of reducing the allowances
paid to SNEs [national experts seconded to the Commission] when
they are in a situation in which it can be assumed that they bear
Page 35
fewer costs and disadvantages on account of their matrimonial
status.”
68. Applying these principles to the present case, I do not regard convicted
prisoners serving their sentence as in a comparable position either to free persons
or to remand prisoners awaiting trial. They have a very different status, to which it
is evident that very different considerations may apply and which are capable at
least of giving rise to very different arguments. It follows that, assuming that the
general principle of non-discrimination applies under European Union law to
eligibility to vote in European Parliamentary elections, there is in my view no basis
for its application in the context of a complaint that convicted prisoners are
discriminated against by reference to free persons or remand prisoners.
The position assuming contrary conclusions
69. I have concluded that the appellants are not entitled to invoke European
law, because, firstly, it confers no individual right by reference to which the
Strasbourg case-law of Hirst (No 2) and Scoppola could be relevant (paras 58 and
59) and, secondly, the general principle of non-discrimination recognised in Eman
and Sevinger is not engaged (paras 63-64) or, if it is engaged, does not assist the
appellants (para 68). In what follows, I will, for completeness, consider the
position assuming opposite conclusions on all these points.
70. If European law recognises an individual right to vote in European
Parliamentary and/or municipal elections, I would reject Mr Southey’s submission
that it would or might go further than the Strasbourg case-law in allowing
convicted prisoners the vote. Court of Justice jurisprudence pays close attention to
and, with very few exceptions, follows Strasbourg jurisprudence. Examples of
divergence are few and far between, although one may, ironically, have occurred
in a sequel to Eman and Sevinger concerning the right to vote in elections for the
Kingdom of Holland, in so far as it is arguable that the Strasbourg court went less
far in Sevinger and Eman v Netherlands (2007) 46 EHRR 179 than the Court of
Justice did in Eman and Sevinger itself: see an instructive case-note by Professor
Leonard F M Besselink on this Strasbourg authority in (2008) 45 CMLR 787. In
the present case, I reject in particular the submission that the Court of Justice
might return to the theme – suggested in Frodl v Austria (2010) 52 EHRR 267,
para 34 by reference to Hirst (No 2), para 82 – that it is essential that any
disenfranchisement of a convicted prisoner be ordered on a case by case basis by a
judge, rather than be pre-determined by an otherwise appropriate legislative
scheme. This suggestion was very clearly, and for very obvious reasons, rejected
by the Grand Chamber in Scoppola v Italy, paras 99-100, a rejection which the
simple Chamber in Anchugov, para 107, took pains to reiterate; see also (though
Page 36
coupled with a reference to judicial interventions being “likely to guarantee the
proportionality of restrictions on prisoners’ voting rights”) Söyler, para 39.
71. The majority in the European Court of Human Rights in Hirst (No 2) found
a violation because Hirst “was directly and immediately affected by the legislative
provision of which complaint is made” and that “the Chamber was justified in
examining the compatibility with the Convention of such a measure, without
regard to the question whether, if the measure had been framed otherwise and in a
way which was compatible with the Convention, the applicant might still have
been deprived of the vote” (para 72). But it regarded the finding of a violation as
just satisfaction and awarded no damages.
72. As the Court said in Kükükdevici, para 51, it is for a national court, in
applying national law,
“to provide, within the limits of its jurisdiction, the legal protection
which individuals derive from European Union law and to ensure the
full effectiveness of that law, disapplying if need be any provision of
national legislation contrary to that principle (see, to that effect,
Mangold, para 77).”
In the present cases, on the assumptions (contrary to my conclusions), first, that
European law recognises an individual right to vote paralleling in substance that
recognised in the Strasbourg case-law of Hirst (No 2) and Scoppola, and, second,
that the view taken by the majority of the Grand Chamber in Hirst (No 2)
regarding standing to claim a general declaration were to be transposed into
European law, the only relief that could be considered under domestic law would
be a generally phrased declaration that the legislative provisions governing
eligibility to vote in European Parliamentary and municipal elections in the United
Kingdom were inconsistent with European Union law. Thereafter, it would be for
the United Kingdom Parliament to address the position and make such legislative
changes as were considered appropriate. But, for reasons paralleling those given in
paras 40 – 42 above, it appears improbable that the Convention rights would, even
when viewed through the prism of European Union law, involve or require the
granting of declarations in the abstract at the instance of claimants like both
Chester and McGeoch, detained in circumstances summarised in para 1 above,
from whom the United Kingdom Parliament could legitimately, and it seems clear
would, under any amended legislative scheme still withhold the vote.
73. I reject the submission that the Supreme Court could or should simply
disapply the whole of the legislative prohibition on prisoner voting, in relation to
European Parliamentary and municipal elections, thereby making all convicted
Page 37
prisoners eligible to vote pending fresh legislation found to conform with
European Union law. It is clear from both Hirst (No 2) and Scoppola that, under
the principles established by those cases, a ban on eligibility will be justified in
respect of a very significant number of convicted prisoners.
74. Nor would it have been possible to read the RPA section 3 or EPEA section
8 compatibly with European law; the legislation is entirely clear and it would flatly
contradict the evident intention of the United Kingdom, when enacting it, to read
into it or to read it as subject to some unspecified scheme or set of qualifications
allowing some unspecified set of convicted prisoners to vote under some
unspecified conditions and arrangements. It would also be impossible for the
Supreme Court itself to devise an alternative scheme of voting eligibility that
would or might pass muster in a domestic or supra-national European Court.
Equally, the Court could not determine or implement the practical and
administrative arrangements that would need to be made to enable any convicted
prisoners eligible under any such scheme to have the vote. Such matters would be
beyond its jurisdiction. In the domestic constitutional scheme, any scheme
conferring partial eligibility to vote on some convicted prisoners is quintessentially
a matter for the United Kingdom Parliament to consider, determine and arrange. In
the passage quoted in para 72 above, the Court of Justice made clear that it is only
“within the limits of its jurisdiction” that a national court can be expected to
provide the legal protection that European Union law requires. That being so, the
creation of any new scheme must be a matter for the United Kingdom Parliament.
75. That does not necessarily conclude this Court’s role under European law.
The principles established in Case C-6/90 Francovich v Italian Republic [1992]
IRLR 84 and Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur SA v
Federal Republic of Germany and R v Secretary of State for Transport, Ex p
Factortame Ltd (No 4) [1996] QB 404 require domestic courts, under certain
conditions, to order their State to make good any loss caused by breach of
European Union law, even where the breach consists in legislation incompatible
with that law. After these decisions by the Court of Justice, the principles stated by
that Court were examined and applied domestically by the House of Lords in R v
Secretary of State, Ex p Factortame Ltd (No 5) [2000] 1 AC 524. Neither Chester
nor McGeoch has set out, supported with evidence or pursued any claim for
damages in the courts below. Both now seek to claim damages, still without any
supporting evidence, and, if necessary, to have their cases remitted for further
determination in this regard. I will however put on one side without deciding the
question whether either should be given leave to enable them at this late stage to
raise any damages claim, and consider the nature and application of the relevant
principles, assuming that such claims were to be permitted.
76. An important factor in determining whether liability in damages may exist
under European law is the width of the discretion available to the legislator: see Ex
Page 38
p Factortame, paras 44 to 46. In this respect the Court equated the position of the
Community and national legislators (para 47). A “strict” (meaning more limited)
approach was taken towards the liability of the Community (or therefore of
national legislators) in the exercise of legislative activities. This was explained
(para 45) as due to two considerations:
“45. First, even where the legality of measures is subject to judicial
review, exercise of the legislative function must not be hindered by
the prospect of actions for damages whenever the general interest of
the Community requires legislative measures to be adopted which
may adversely affect individual interests. Secondly, in a legislative
context characterized by the exercise of a wide discretion, which is
essential for implementing a Community policy, the Community
cannot incur liability unless the institution concerned has manifestly
and gravely disregarded the limits on the exercise of its powers…”
As the Court went on to point out, “the national legislature — like the Community
institutions — does not systematically have a wide discretion when it acts in a field
governed by Community law” (para 46). It depends on the nature of the European
law or principle being implemented. However, in the context of eligibility to vote,
it is clear that national legislatures have a wide discretion.
77. Where a wide legislative discretion of this nature exists, three conditions
govern the incurring of any liability on account of the legislative choices made by
the State pursuant to such discretion. These were explained in Ex p Factortame as
follows:
“51 In such circumstances, Community law confers a right to
reparation where three conditions are met: the rule of law infringed
must be intended to confer rights on individuals; the breach must be
sufficiently serious, and there must be a direct causal link between
the breach of the obligation resting on the State and the damage
sustained by the injured parties.
52 First, those conditions satisfy the requirements of the full
effectiveness of the rules of Community law and of the effective
protection of the rights which those rules confer.
53 Secondly, those conditions correspond in substance to those
defined by the Court in relation to Article 215 in its case-law on
Page 39
liability of the Community for damage caused to individuals by
unlawful legislative measures adopted by its institutions.
….
55 As to the second condition, as regards both Community liability
under Article 215 and Member State liability for breaches of
Community law, the decisive test for finding that a breach of
Community law is sufficiently serious is whether the Member State
or the Community institution concerned manifestly and gravely
disregarded the limits on its discretion.
56 The factors which the competent court may take into
consideration include the clarity and precision of the rule breached;
the measure of discretion left by that rule to the national or
Community authorities; whether the infringement and the damage
caused was intentional or involuntary; whether any error of law was
excusable or inexcusable; the fact that the position taken by a
Community institution may have contributed towards the omission,
and the adoption or retention of national measures or practices
contrary to Community law.
57 On any view, a breach of Community law will clearly be
sufficiently serious if it has persisted despite a judgment finding the
infringement in question to be established, or a preliminary ruling or
settled case-law of the Court on the matter from which it is clear that
the conduct in question constituted an infringement.”
These principles were reiterated in Case 392/93 R v HM Treasury, Ex p British
Telecommunications plc [1996] QB 615, an example of a case where the Court of
Justice held that the breach had not involved a manifest and grave disregard of
European law, and Case 278/05 Robins v Secretary of State for Work and Pensions
[2007] ICR 779, where the Court emphasised the importance of the breadth of the
legislative discretion in that case and the fact that the provisions of the relevant
directive did not make it possible to establish with any precision the level of
pension protection which it required.
78. Turning to apply these principles to the present cases, I make the twin
assumptions (again contrary to my conclusions) that (a) European Union confers
rights to vote on individual citizens of the Union, subject to the United Kingdom’s
legislative discretion to introduce limitations, but that (b) the present general
Page 40
prohibition on prisoner voting is contrary to principles paralleling those stated by
the Strasbourg court in Hirst (No 2) and Scoppola and/or the general European
Union principle of equality or non-discrimination. On those assumptions, the
second and third conditions for any personal claim arise for consideration.
79. The second condition is that the breach was sufficiently serious. This in turn
depends, under European law, upon whether Parliament, the relevant United
Kingdom authority, can be said manifestly and gravely to have disregarded the
limits on its discretion. This must be judged taking into consideration “the clarity
and precision of the rule breached; the measure of discretion left by that rule to the
national or Community authorities; whether the infringement and the damage
caused was intentional or involuntary; whether any error of law was excusable or
inexcusable” (para 77 above). In relation to voting by convicted prisoners, the
United Kingdom legislature enjoyed a wide margin of discretion. Further, this is in
a context where there has been and remains a considerable lack of certainty about
what the parameters of that discretion may be. This is evident from a reading of the
Strasbourg case-law, particularly the two Hirst judgments, the Chamber judgment
in Frodl v Austria (2010) 52 EHRR 267 and the Grand Chamber judgment overruling the Chamber judgment in Scoppola v Italy, in which the European Court of
Human Rights has sought to identify the relevant considerations and to apply them
to particular facts. Accordingly, it is clearly very arguable that this condition is not
met.
80. I will not however say more about the application of the second condition in
this case, in view of one further factor, which I prefer to leave open. The test stated
in the European authorities postulates some degree of examination of the conduct
of the relevant national authority. Since the relevant United Kingdom authority is
here Parliament in enacting and continuing in force the relevant legislation, an
assessment of some of these matters (particularly whether the infringement was
intentional or involuntary, excusable or inexcusable) may threaten conflict with the
constitutional principle enshrined in the Bill of Rights 1688 that domestic courts in
the United Kingdom ought not to “impeach or question” proceedings in
Parliament. To avoid this, it may perhaps be necessary to approach a claim for
damages in a case like the present on an objective basis, without regard to what has
actually happened or been said in Parliament. The decision in R v Secretary of
State, Ex p Factortame (No 5) [2000] 1 AC 524 does not appear to throw any light
on this problem, because there does not seem there to have been any call to
consider Parliamentary debates. On any view, however, the fact of Parliamentary
activity, referred to in Greens and continuing, can no doubt be taken into account.
81. The third condition is that there must be a direct causal link between the
breach of the obligation resting on the State and the damage sustained by the
injured parties.
Page 41
82. In relation to both the second and the third conditions, it must in my opinion
be relevant to have regard to the particular position of the present appellants. The
questions are whether, in refusing them the vote, the United Kingdom has
manifestly and gravely disregarded the limits on its discretion and whether they
have sustained damage directly caused by the United Kingdom’s breach of an
obligation owed to give each of them a right to vote. In Strasbourg case-law,
according to the majority in Hirst (No 2), a claimant can complain that the law in
general is incompatible with the Convention rights, without showing that it was or
would have been incompatible with such rights to deprive him in particular of the
vote. But to award a convicted prisoner damages without showing that European
Union law required him, rather than some other prisoner or prisoners, to have the
vote would be positively inconsistent with the conditions stated in Francovich and
Ex p Factortame.
83. On that basis, I consider that any claim for damages by McGeoch and
Chester must on any view fail. McGeoch is still serving the punishment part of his
sentence resulting from the combination of his life and consecutive fixed-term
sentence. There can, in the light of Scoppola, be no question about the United
Kingdom’s entitlement to deprive a prisoner in his position of the vote. Chester is
in his post-tariff period of his life sentence, but it is notable that the European
Court of Human Rights deliberately refrained from endorsing the original
Chamber view or Judge Caflisch’s concurring minority view (para 40 above) that
there is a critical distinction between the tariff and post-tariff period. Further, in
Scoppola, the Strasbourg court accepted that disenfranchisement could continue
for life in the case of sentences of five years or more. This was subject only to the
right, three years after release, to apply for “rehabilitation”, which would be
granted upon his displaying “consistent and genuine good conduct”: see para 22
above. The requirement to display good conduct in order to regain voting rights
was thus regarded as not only relevant, but acceptable. The Strasbourg court
accepted as a legitimate aim “enhancing civic responsibility and respect for the
rule of law”. Continuing detention for a period lasting so long as “necessary for the
protection of the public” (paras 30 and 40 above) can be no less relevant and
acceptable as a criterion for continuing deprivation of the right to vote during that
period. The underlying consideration, that the offender is not fully rehabilitated or
ready to participate responsibly in the country’s democratic life, is the same in
each case. This is underlined by the passage from the Grand Chamber’s recent
decision in Vinter quoted in para 41 above.
Conclusions
84. My conclusions on the issues argued on this appeal are summarised in para
4 above. It remains only to consider whether the resolution of this appeal
necessitates a reference to the European Court of Justice. This depends upon
whether it depends upon the determination of any question of European law which
Page 42
is open to reasonable doubt under the principles stated in Case 283/81 CILFIT Srl
v Ministry of Health [1982] ECR 3415 and recently discussed in this Court in X v
Mid Sussex Citizens Advice Bureau [2012] UKSC 59, [2013] ICR 249. In my
opinion, the conclusions of European law reached in paras 45, 58, 59 and 63-64
are acte clair, and they are by themselves sufficient to resolve the appeals. Were it
necessary for the decision of these appeals, I would also regard the conclusions in
para 70 as acte clair. The further conclusions (again not necessary for the
resolution of these appeals) reached in other paras are matters for this Court to
determine, applying established principles of European law where relevant. In the
circumstances, I do not consider that any reference to the Court of Justice is called
for.
85. It follows that, in my opinion, both appeals should be dismissed.
LADY HALE (with whom Lord Hope and Lord Kerr agree)
86. Prisoners’ voting is an emotive subject. Some people feel very strongly that
prisoners should not be allowed to vote. And public opinion polls indicate that
most people share that view. A YouGov poll in November 2012 found that 63% of
respondents said that “no prisoners should be allowed to vote”, 15% said that those
serving sentences of less than six months should be allowed to vote, 9% said that
those serving less than four years should be allowed to vote, and 8% said that all
prisoners should be allowed to vote. A YouGov poll in January 2011 which asked
the same questions produced respective figures of 69%, 6%, 3% and 8%. This
suggests that public opinion may be becoming more sympathetic to the idea, with
32% now favouring some relaxation in the present law, but there is still a
substantial majority against it. It is not surprising, therefore, that in February 2011
elected Parliamentarians also voted overwhelmingly against any relaxation of the
present law.
87. In such circumstances, it is incumbent upon the courts to tread delicately.
As I shall explain, in my view it is now clear that the courts should not entertain a
human rights claim on behalf of Mr Chester or, indeed, of Mr McGeoch had he
made one. Both are serving sentences of life imprisonment for murder. Mr Chester
was sentenced to life imprisonment for the murder of his niece, with a tariff of 20
years which expired in October 1997. The Parole Board has not yet found him
suitable for release on licence. Mr McGeoch was also sentenced to life
imprisonment for murder, with a tariff of 13 years which expired in October 2011;
but he has had further convictions for serious offences committed while in prison
and is currently serving seven and a half years for violently escaping from prison
in 2008. I do not consider that the human rights of either were violated by the
Electoral Registration Officers’ refusal to register them on the electoral roll. Their
Page 43
claims under European Union law are another story, because they raise novel
arguments which require to be resolved. On those claims I have nothing to add to
the judgment of Lord Mance, with which I agree.
88. Of course, in any modern democracy, the views of the public and
Parliamentarians cannot be the end of the story. Democracy is about more than
respecting the views of the majority. It is also about safeguarding the rights of
minorities, including unpopular minorities. “Democracy values everyone equally
even if the majority does not”: Ghaidan v Godin-Mendoza [2004] 2 AC 557, para
132. It follows that one of the essential roles of the courts in a democracy is to
protect those rights. It was for that reason that Lord Bingham took issue with the
argument of a previous Attorney-General, Lord Goldsmith, in A v Secretary of
State for the Home Department [2005] 2 AC 68, para 42:
“I do not . . . accept the distinction which he drew between
democratic institutions and the courts. It is of course true that the
judges in this country are not elected and are not answerable to
Parliament. . . . But the function of independent judges charged to
interpret and apply the law is universally recognised as a cardinal
feature of the modern democratic state, a cornerstone of the rule of
law itself. The Attorney General is fully entitled to insist on the
proper limits of judicial authority, but he is wrong to stigmatise
judicial decision-making as in some way undemocratic.”
89. The present Attorney General has wisely not suggested any such thing. He
recognises that it is the court’s task to protect the rights of citizens and others
within the jurisdiction of the United Kingdom in the ways which Parliament has
laid down for us in the Human Rights Act 1998. But insofar as he implied that
elected Parliamentarians are uniquely qualified to determine what the franchise
should be, he cannot be right. If the current franchise unjustifiably excludes certain
people from voting, it is the court’s duty to say so and to give them whatever
remedy is appropriate. More fundamentally, Parliamentarians derive their authority
and legitimacy from those who elected them, in other words from the current
franchise, and it is to those electors that they are accountable. They have no such
relationship with the disenfranchised. Indeed, in some situations, they may have a
vested interest in keeping the franchise as it is.
90. To take an obvious example, we would not regard a Parliament elected by
an electorate consisting only of white, heterosexual men as uniquely qualified to
decide whether women or African-Caribbeans or homosexuals should be allowed
to vote. If there is a Constitution, or a Bill of Rights, or even a Human Rights Act,
which guarantees equal treatment in the enjoyment of its fundamental rights,
including the right to vote, it would be the task of the courts, as guardians of those
Page 44
rights, to declare the unjustified exclusion unconstitutional. Given that, by
definition, Parliamentarians do not represent the disenfranchised, the usual respect
which the courts accord to a recent and carefully considered balancing of
individual rights and community interests (as, for example, in R (Countryside
Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719 and R (Animal
Defenders International) v Secretary of State for Culture, Media and Sport [2008]
UKHL 15, [2008] AC 1312, both upheld in Strasbourg for that very reason) may
not be appropriate.
91. Of course, the exclusion of prisoners from voting is of a different order
from the exclusion of women, African-Caribbeans or homosexuals. It is difficult to
see how any elected politician would have a vested interest in excluding them
(save just possibly from local elections in places where there are very large
prisons). The arguments for and against their exclusion are quite finely balanced.
On the one hand, unlike women, African-Caribbeans and homosexuals, prisoners
share a characteristic which many think relevant to whether or not they should be
allowed to vote: they have all committed an offence deemed serious enough to
justify their removal from society for at least a while and in some cases
indefinitely. While clearly this does not mean that all their other rights are
forfeited, why should they not for the same time forfeit their right to take part in
the machinery of democracy?
92. Hence I see the logic of the Attorney General’s argument, that by deciding
that an offence is so serious that it merits a custodial penalty, the court is also
deciding that the offence merits exclusion from the franchise for the time being.
The custody threshold means that the exclusion, far from being arbitrary and
disproportionate, is tailored to the justice of the individual case.
93. One problem with that argument is that it does not explain the purpose of
the exclusion. Any restriction of fundamental rights has to be a proportionate
means of pursuing a legitimate aim. Is it simply an additional punishment, a
further mark of society’s disapproval of the criminal offence? Or is it rather to
encourage a sense of civic responsibility and respect for democratic institutions? If
so, it could well be argued that this is more likely to be achieved by retaining the
vote, as a badge of continuing citizenship, to encourage civic responsibility and
reintegration in civil society in due course. This is indeed, as Laws LJ observed in
the Court of Appeal, a matter on which thoughtful people can hold diametrically
opposing views.
94. A more concrete objection to the Attorney General’s argument is that the
custody threshold in this country has never been particularly high. As Lord
Bingham of Cornhill CJ observed in R v Howells [1999] 1 WLR 307, 310,
deciding when an offence is so serious that only a custodial sentence can be
Page 45
justified is “one of the most elusive problems of criminal sentencing”. Between
1992 and 2002, the custodial sentencing rate rose from 5% to 15% in the
magistrates’ courts and from 44% to 63% in the Crown Court (for an overview of
sentencing trends in the last 20 years, see Ministry of Justice, The Story of the
Prison Population 1993-2012, 2013). Some of the rise may be accounted for by
the greater seriousness of the offences coming before the courts, but this cannot be
the whole explanation. There are many people in prison who have not committed
very serious crimes, but for whom community punishments are not available, or
who have committed minor crimes so frequently that the courts have run out of
alternatives.
95. Also, the threshold has varied over time in accordance with changes in
penal policy which have nothing to do with electoral policy: what, for example, are
we to make of the ups and downs in the legislative popularity of suspended
sentences? Exactly the same crime may attract an immediate custodial sentence
and disenfranchisement at one time or a suspended sentence without
disenfranchisement at another. Moreover, the custody threshold has traditionally
varied as between different parts of the United Kingdom, with a significantly
greater use of imprisonment in Scotland than in England and Wales (although this
is diminishing). The sentencing regimes are different in England and Wales,
Scotland and Northern Ireland, but the exclusion from voting is the same.
96. All of this suggests an element of arbitrariness in selecting the custody
threshold as a unique indicator of offending so serious as to justify exclusion from
the democratic process. To this may be added the random impact of happening to
be in prison on polling day and the various reasons why someone who has been
sentenced to a period of imprisonment may not in fact be in prison on that day. He
may, as Lord Clarke points out, be on bail pending an appeal; or he may be
released early under electronic monitoring.
97. Then there is the situation of mental patients. All those who are detained in
hospital as a result of an order made in a criminal court, apart from those on
remand, are also disenfranchised (Representation of the People Act 1983, section
3A(1),(2)). This includes patients who have been found unfit to plead or not guilty
by reason of mental disorder, whose culpability may be very different from that of
convicted prisoners. There is no equivalent of the custody threshold (as long as the
offence is punishable with imprisonment) and no correlation between the
seriousness of the offence and the length of time that the patient will be detained in
hospital.
98. I mention these additional matters to explain why, in common with Lord
Clarke, I have some sympathy for the view of the Strasbourg court that our present
law is arbitrary and indiscriminate. But I acknowledge how difficult it would be to
Page 46
devise any alternative scheme which would not also have some element of
arbitrariness about it. The Strasbourg court, having stepped back from the
suggestion in Frodl v Austria (2010) 52 EHRR 267 that exclusion from the
franchise requires a judicial decision in every case and approved the Italian law in
Scoppola v Italy (No 3) (2012) 56 EHRR 663, must be taken to have accepted this.
99. However, I have no sympathy at all for either of these appellants. I cannot
envisage any law which the United Kingdom Parliament might eventually pass on
this subject which would grant either of them the right to vote. In Hirst v United
Kingdom (No 2) (2005) 42 EHRR 849, the Strasbourg court declined to conclude
that applying the ban to post-tariff life prisoners would necessarily be compatible
with article 3 of the First Protocol. But it seems clear from the decision in
Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which
deprived murderers sentenced to life imprisonment of the right to vote, certainly
while they remained in prison, and probably even after they were released on
licence, as long as there was then a power of review.
100. Hence I cannot see how Mr Chester can sensibly have a claim to a remedy
under the Human Rights Act. It may be, as Lord Mance has concluded, that he
qualifies as a “victim” for the purpose of section 7 of the Human Rights Act. But
this is only in the sense that, as the majority of the Grand Chamber in Hirst (No 2)
held, he was directly affected by the law in question. This justified that court, in
the majority view, examining the compatibility of the law with the Convention,
irrespective of whether he might justifiably have been deprived of the vote under
some other law. A strong minority, including the then President, Judge Wildhaber,
and his successor, Judge Costa, pointed out that this was not the usual practice of
the court (para OIII8):
“The Court has consistently held in its case law that its task is not
normally to review the relevant law and practice in abstracto, but to
determine whether the manner in which they were applied to, or
affected, the applicant gave rise to a violation of the Convention. It
is, in our opinion, difficult to see in what circumstances restrictions
on voting rights would be acceptable, if not in the case of persons
sentenced to life imprisonment. Generally speaking, the Court’s
judgment concentrates above all on finding the British legislation
incompatible with the Convention in abstracto. We regret that
despite this focus it gives the states little or no guidance as to what
would be solutions compatible with the Convention. Since
restrictions on the right to vote continue to be compatible, it would
seem obvious that the deprivation of the right to vote for the most
serious offences such as murder or manslaughter, is not excluded in
the future. Either the majority are of the view that deprivations for
the post-tariff period are excluded, or else they think that a judge has
Page 47
to order such deprivations in each individual case. We think that it
would have been desirable to indicate the correct answer.”
In other words, it would have been in accordance with the consistent practice of
the court for the majority to indicate in precisely what way Mr Hirst’s rights had
been violated by the law in question. It seems to me that the courts of this country
should adopt that sensible practice when considering the application of the various
remedies provided by the Human Rights Act.
101. In this case, there can be no question of Mr Chester having a cause of action
under section 6(1) of the Human Rights Act. The Electoral Registration Officer for
Wakefield refused his application for inclusion on the electoral roll. But in my
view that could not have been incompatible with his Convention rights, because (at
least following Scoppola v Italy) the Convention does not give him the right to
vote. But even if it was incompatible, the public authority could not have acted
differently, because of the provisions of the Representation of the People Act, and
so by virtue of section 6(2)(a) the act was not unlawful. Nor is there any question
of our reading and giving effect to the Act in a way which is compatible with the
Convention rights, in accordance with our duty under section 3(1). No-one has
suggested that it would be possible to do so in a case such as this. It is obvious that
any incompatibility can only be cured by legislation and the courts cannot
legislate. But even if we could, we would only seek to “read and give effect” to the
statute in a way which was compatible with the rights of the individual litigant
before us. As, in my view at least, the ban on voting is not incompatible with the
rights of this particular litigant, a reading which was compatible with the rights of
a completely different litigant would do him no good.
102. That leaves the possibility of a declaration of incompatibility under section
4(2) of the Human Rights Act. This applies “in any proceedings in which a court
determines whether a provision of primary legislation is compatible with a
Convention right”. This does appear to leave open the possibility of a declaration
in abstracto, irrespective of whether the provision in question is incompatible with
the rights of the individual litigant. There may be occasions when that would be
appropriate. But in my view the court should be extremely slow to make a
declaration of incompatibility at the instance of an individual litigant with whose
own rights the provision in question is not incompatible. Any other approach is to
invite a multitude of unmeritorious claims. It is principally for that reason that I
would decline to make a declaration of incompatibility on the application of either
Mr Chester or (had he made one) Mr McGeoch. Indeed, in my view the courts
should not entertain such claims. It is otherwise, of course, in borderline cases.
103. In those circumstances it seems to me unnecessary to express a view on
whether we should follow or depart from the substance of the decision in Hirst v
Page 48
LORD CLARKE
104. I agree that these appeals should be disposed of as proposed by Lord Mance
and Lord Sumption.
105. I also agree with the reasoning of both Lord Mance and Lord Sumption,
subject to this. I would be less critical than Lord Sumption of the decisions of the
European Court of Human Rights to which they refer. The reasoning of the
Strasbourg Court has very recently been summarised in Anchugov and Gladkov v
Russia (Application Nos 11157/04 and 15162/05), 4 July 2013, at paras 93-100. In
particular, in para 100 it distinguished between Hirst v United Kingdom (No 2)
(2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 in this
way:
“100. The principles set out in the Hirst (No 2) case were later
reaffirmed in the Scoppola (No 3) [GC] judgment. The Court
reiterated, in particular, that when disenfranchisement affected a
group of people generally, automatically and indiscriminately, based
solely on the fact that they are serving a prison sentence, irrespective
of the length of the sentence and irrespective of the nature or gravity
of their offence and their individual circumstances, it was not
compatible with Article 3 of Protocol No 1 (see Scoppola (No 3)
[GC], cited above, para 96). The Court found no violation of that
Convention provision in the particular circumstances of this latter
case however, having distinguished it from the Hirst (No 2) case. It
observed that in Italy disenfranchisement was applied only in respect
of certain offences against the State or the judicial system, or
offences punishable by a term of imprisonment of three years or
more, that is, those which the courts considered to warrant a
particularly harsh sentence. The Court thus considered that ‘the legal
provisions in Italy defining the circumstances in which individuals
may be deprived of the right to vote show[ed] the legislature’s
concern to adjust the application of the measure to the particular
circumstances of [each] case, taking into account such factors as the
gravity of the offence committed and the conduct of the offender’
(ibid, para 106). As a result, the Italian system could not be said to
have a general automatic and indiscriminate character, and therefore
the Italian authorities had not overstepped the margin of appreciation
afforded to them in that sphere (ibid, paras 108 and 110).
Page 49
106. On the facts the Court held at para 101 that the position in Russia was very
similar to that in Hirst (No 2), namely that the applicants were stripped of their
right to vote by virtue of a provision of the Russian Constitution which applied to
all persons convicted and serving a custodial sentence, irrespective of the length of
their sentence and of the nature or gravity of their offence and their individual
circumstances. The Court compared Hirst (No 2) at para 82 with Scoppola (No 3)
at paras 105-110. The Court said at para 102 that it was prepared to accept that the
relevant measure pursued the aims of enhancing civic responsibility and the
respect for the rule of law and ensuring the proper functioning and preservation of
civil society and the democratic regime and that those aims could not, as such, be
excluded as untenable or incompatible with A3P1.
107. The essence of the Court’s decision is set out in para 103. It rejected the
Government’s arguments on the issue of proportionality, reiterating the point made
in para 82 of Hirst (No 2), that, although the margin of appreciation is wide, it is
not all-embracing and added:
“the right to vote is not a privilege; in the twenty-first century, the
presumption in a democratic State must be in favour of inclusion and
universal suffrage has become the basic principle. In the light of
modern-day penal policy and of current human rights standards,
valid and convincing reasons should be put forward for the continued
justification of maintaining such a general restriction on the right of
prisoners to vote as that provided for in Article 32(3) of the Russian
Constitution (ibid, para 79).”
108. Further, at para 105 the Court emphasised the fact that the Russian
constitution imposed a blanket ban on all those imprisoned, from two months,
which is the minimum period of imprisonment following conviction in Russia, to
life and from “relatively minor offences to offences of the utmost seriousness”. At
para 106 it stressed that, as in the United Kingdom, there was no evidence that,
when deciding whether to impose a custodial sentence, the court should take into
account the fact that the sentence would involve disenfranchisement, so that there
was no direct link between the facts of a particular case and the loss of the right to
vote. It recognised in para 107 that removal of the right to vote without an ad hoc
judicial decision does not of itself give rise to a violation but, in response to an
argument that the adoption of the Russian constitution was preceded by extensive
public debate, it observed that the Government had submitted no relevant materials
to support it. In doing so, it expressly followed an almost identical conclusion in
para 79 of Hirst (No 2).
Page 50
109. As I see it, the thrust of the conclusions in the Strasbourg cases is that a
blanket ban is disproportionate and indiscriminate, at any rate without detailed
analysis of the problem because, as it is put at para 82 of Hirst (No 2), the ban
applies automatically to all prisoners irrespective of the nature and gravity of the
relevant offence or the individual circumstances of the particular offender. It thus
applies to those sentenced to very short sentences and operates in an arbitrary way
for two reasons. First, it applies in the same way to a person sentenced to 28 days
or 28 years. Yet there is clearly an enormous gulf in terms of culpability between
those sentenced to 28 days for, say, persistent shoplifting and those sentenced to
28 years for a very serious offence. Secondly, whether a person loses the right to
vote depends upon the chance that the relevant person happens to be in prison on a
particular day, by comparison perhaps with a co-defendant who received an
identical sentence but is on bail pending appeal. Moreover, it is difficult to see
how it can be proportionate to deprive a person of a vote which is relevant to the
governance of the state for a period of five years in circumstances where that
person may be in prison for no more than 14 days.
110. I appreciate that, wherever the line may be drawn, there may be an element
of arbitrariness as to the choice and effect of a particular line. But there seems to
me to be much to be said for the Strasbourg Court’s approach to a blanket ban, at
any rate absent detailed consideration of the pros and cons of such a ban. However
that may be, I agree that this Court should follow the now settled jurisprudence in
the Strasbourg Court for the reasons given by Lord Mance and Lord Sumption.
111. Since writing the above, I have read the judgment of Baroness Hale in draft
and would simply like to add that I agree with it.
LORD SUMPTION (with whom Lord Hughes agrees)
112. I agree with the orders proposed by Lord Mance, for all of the reasons that
he gives in his judgment as well as those given in the judgment of Lady Hale. I
wish to add my own observations on one question only, namely whether we should
apply the principles stated by the European Court of Human Rights in Hirst (No 2)
and Scoppola. It is an issue which raises in an acute form the potential conflict
between the interpretation of the European Convention on Human Rights by the
European Court of Human Rights and the processes by which alone laws are made
in a democracy. The conflict arises from the requirement of the European Court of
Human Rights that the United Kingdom should amend the Representation of the
People Act 1983 so as to give at least some convicted prisoners the right to vote in
national and local elections, something for which there is at present only negligible
support in the House of Commons and very little among the public at large. If
democracy is viewed as a system of decision-making by those answerable to the
Page 51
electorate (as opposed to a system of values thought to be characteristic of
democracies), this is bound to be a matter of real concern. Of course, as Lady Hale
has pointed out, it does not follow that a democracy can properly do whatever it
likes, simply by virtue of the democratic mandate for its acts. The protection of
minorities is a necessary concern of any democratic constitution. But the present
issue has nothing whatever to do with the protection of minorities. Prisoners
belong to a minority only in the banal and legally irrelevant sense that most people
do not do the things which warrant imprisonment by due process of law.
113. In any democracy, the franchise will be determined by domestic laws which
will define those entitled to vote in more or less inclusive terms. The right to vote
may be based on citizenship or residence, or a combination of the two. There will
invariably be a minimum voting age and may be other conditions of eligibility,
such as mental capacity. In the United Kingdom, the right to vote at parliamentary
and local government elections is enjoyed by Commonwealth citizens and citizens
of the Republic of Ireland aged over 18, who are on the electoral roll, and not
subject to any legal incapacity to vote. Inclusion on the electoral roll depends on
current (or in some cases recent) residence. The only legal incapacity of any
significance relates to convicted prisoners. Section 3(1) of the Representation of
the People Act 1983 provides that convicted prisoners are “legally incapable of
voting at any parliamentary or local government election.” There are limited
exceptions for those committed for contempt of court or detained for default of
compliance with another sentence (such as a fine). Section 8(1) and (2) of the
European Parliamentary Elections Act 2002 apply the same rules of eligibility to
elections for the European Parliament. These provisions are entirely clear. There is
no way in which they can be read down so as to allow voting rights to any
category of convicted prisoners other than those falling within the specified
exceptions.
114. The exclusion of convicted prisoners from the franchise is not a universal
principle among mature democracies, but neither is it uncommon. Information
provided by the Foreign Office in answer to a parliamentary question (updated to
July 2012) indicates that at least 18 European countries including Denmark,
Finland, Ireland, Spain, Sweden and Switzerland have no restrictions on voting by
prisoners. Bulgaria, Estonia, Georgia, Hungary, Japan, Liechtenstein, Russia and
the United States ban all convicted prisoners from voting, as do two of the seven
Australian states. In some countries such as France disenfranchisement is reserved
for those convicted of certain particularly serious offences, and in others such as
Belgium for cases in which the prisoner is sentenced to a period of imprisonment
exceeding a given threshold. In France, the Netherlands and Belgium
disenfranchisement is an additional penalty imposed as a matter of judicial
discretion. In other countries, such as Germany and Italy, it is automatic in
specified cases. In Belgium, Italy and some jurisdictions of the United States, the
Page 52
loss of voting rights may continue even after a prisoner’s release. It is apparent that
this is not a question on which there is any consensus.
115. From a prisoner’s point of view the loss of the right to vote is likely to be a
very minor deprivation by comparison with the loss of liberty. There are no doubt
prisoners whose interest in public affairs or strong views on particular issues are
such that their disenfranchisement represents a serious loss, just as there are
prisoners (probably more numerous) whose enthusiasm for active sports makes
imprisonment a special hardship. The severity of a sentence of imprisonment for
the convicted person will always vary with a wide variety of factors whose impact
on him or her will inevitably be arbitrary to some degree. It has been said, for
example, that disenfranchisement may bear hardly on someone sentenced to, say, a
short period of imprisonment which happens to coincide with a general election.
For some prisoners, this will no doubt be true. But I decline to regard it as any
more significant than the fact that it may coincide with a special anniversary, a
long anticipated holiday or the only period of fine weather all summer.
116. Article 3 of the First Protocol to the Human Rights Convention provides
that the contracting parties “undertake to hold free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.” In 2005, the Grand Chamber
of the European Court of Human Rights held in Hirst v United Kingdom (No 2)
(2005) 42 EHRR 849 that a “blanket restriction” on voting by all prisoners
violated article 3 of the First Protocol. In Greens and MT v United Kingdom
(2010) 53 EHRR 710, the European Court of Human Rights delivered a “pilot
judgment” on a large number of petitions by convicted prisoners which sought
damages for the denial of their rights under article 3 of the First Protocol,
consequent upon the decision in Hirst. The court refused to make an award of
damages, but directed that the United Kingdom should “bring forward, within six
months of the date upon which the present judgment becomes final, legislative
proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a
manner which is Convention-compliant” and effectively stayed further
proceedings on pending petitions of the same kind until the expiry of that period.
The deadline was subsequently extended by the European Court until six months
after the judgment of the Grand Court in another case, Scoppola v Italy (No 3)
(2012) 56 EHRR 663, in which the United Kingdom government proposed to
intervene to make submissions about the correctness of Hirst. However, the
judgment in that case, which was delivered on 22 May 2012, reaffirmed both the
reasoning and the decision in Hirst. The deadline imposed by the Strasbourg Court
expired in November 2012.
117. In December 2006, in the light of the decision in Hirst, the Government
published a consultation paper setting out two alternative proposals for amending
section 3 of the Representation of the People Act. One was to enfranchise
Page 53
prisoners sentenced to less than a specified term, which would be “low…, such as
one year in prison”. The other was to allow sentencers a discretion on whether the
franchise should be withdrawn in the particular case. A further consultation paper
was published in April 2009 summarising responses to the first paper and seeking
views on the approach to be adopted. The Government indicated its own
preference for an automatic restriction of the franchise based on the seriousness of
the offence, as reflected in the length of the sentence. On 20 December 2010, after
the decision of the European Court of Human Rights in Greens and MT, the
Government announced that it would propose to Parliament that offenders
sentenced to a term of imprisonment of less than four years would have the right to
vote in parliamentary and European Parliament elections, unless the sentencing
judge directed otherwise. Subsequently, the question of prisoners’ voting rights
was debated twice. There was a Westminster Hall adjournment debate on 10
January 2011, at which many members of the House of Commons expressed
strong opposition to enfranchising any prisoners. A month later, on 11 February
2011, there was an all-day debate on the floor of the House of Commons on a
motion put forward jointly by senior backbench MPs from both sides of the House,
that
“legislative decisions of this nature should be a matter for
democratically elected lawmakers; and supports the current situation
in which no sentenced prisoner is able to vote except those
imprisoned for contempt, default or on remand.”
This motion was carried by 234 votes to 22, both front benches abstaining.
118. On 22 November 2012 the Government published the Voting Eligibility
(Prisoners) Draft Bill (Cm 8499), setting out three options, (a) a ban on voting by
prisoners sentenced to four years imprisonment or more, (b) a ban for prisoners
sentenced to more than six months imprisonment, or (c) a general ban, i.e. a
restatement of the present position. The explanatory memorandum accompanying
the draft Bill pointed out that option (c) could not be regarded as compatible with
the Convention. The draft Bill is currently being considered by a joint Select
Committee of both Houses. For the moment, however, the only reasonable
conclusion that can be drawn from this history is that there is no democratic
mandate for the enfranchisement of convicted prisoners.
119. It is an international obligation of the United Kingdom under article 46.1 of
the Convention to abide by the decisions of the European Court of Human Rights
in any case to which it is a party. This obligation is in terms absolute. The
remainder of article 46 contains provisions for its collective enforcement by the
institutions of the Council of Europe. Many states have written constitutions which
give automatic effect in domestic law to treaties to which they are party.
Constitutional provisions of this kind are generally accompanied by provisions
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giving the legislature a role in the ratification of treaties. But the making of treaties
in the United Kingdom is an exercise of the royal prerogative. There was no legal
requirement for parliamentary scrutiny until the enactment of Part 2 of the
Constitutional Reform and Governance Act 2010, although pursuant to an
undertaking given to Parliament in April 1924 treaties were in practice laid before
Parliament and there was a recognised constitutional convention (the so-called
‘Ponsonby Rule’) that this should be done. The result of the constitutional status of
treaties in the United Kingdom is that they are not a source of rights or obligations
in domestic law unless effect is given to them by statute: R v Secretary of State for
the Home Department, Ex p Brind [1991] 1 AC 696, 747-748 (Lord Bridge of
Harwich), 762 (Lord Ackner); R v Lyons [2003] 1 AC 976; In re McKerr [2004] 1
WLR 807, para 25 (Lord Nicholls of Birkenhead), para 48 (Lord Steyn), para 63
(Lord Hoffmann), para 80 (Lord Rodger of Earlsferry) and para 90 (Lord Brown of
Eaton-under-Heywood).
120. The Human Rights Act 1998 might have given direct legal effect to
interpretations of the Human Rights Convention by the Strasbourg Court, or
required the executive to give effect to them by statutory instrument. Both
techniques were employed in relation to EU law by the European Communities
Act 1972. But, as is well-known, its drafting was a compromise designed to make
the incorporation of the Convention into English law compatible with the
sovereignty of Parliament. Neither of these techniques was therefore adopted.
Under section 10 of and Schedule 2 to the Act, the Crown has a power but not a
duty to amend legislation by order so as to conform with the Convention where
there are “compelling reasons” for doing so, but this is subject to prior
parliamentary approval under the positive resolution procedure (there are special
provisions in urgent cases for an order to be made with provisional effect subject
to such a resolution being passed). It follows that the interpretation of the
Convention by the Strasbourg Court takes effect in English law only by decision of
the English courts. Section 2(1) of the Act provides that a United Kingdom court
determining a question which has arisen in connection with a Convention right
must “take into account” any judgment, decision or declaration of the European
Court of Human Rights. For this purpose Convention rights are those set out in
those of its provisions to which effect is given by the Act, i.e. articles 2 to 12 and
14 of the Convention, articles 1 to 3 of the First Protocol and article 1 of the
Thirteenth Protocol: see section 1(1) and (2). Whatever may be meant by “taking
into account” a decision of the Strasbourg Court, it is clearly less than an absolute
obligation. The international law obligation of the United Kingdom under article
46.1 of the Convention goes further than section 2(1) of the Act, but it is not one of
the provisions to which the Act gives effect.
121. In the ordinary use of language, to “take into account” a decision of the
European Court of Human Rights means no more than to consider it, which is
consistent with rejecting it as wrong. However, this is not an approach that a
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United Kingdom court can adopt, save in altogether exceptional cases. The courts
have for many years interpreted statutes and developed the common law so as to
achieve consistency between the domestic law of the United Kingdom and its
international obligations, so far as they are free to do so. In enacting the Human
Rights Act 1998, Parliament must be taken to have been aware that effect would
be given to the Act in accordance with this long-standing principle. A decision of
the European Court of Human Rights is more than an opinion about the meaning
of the Convention. It is an adjudication by the tribunal which the United Kingdom
has by treaty agreed should give definitive rulings on the subject. The courts are
therefore bound to treat them as the authoritative expositions of the Convention
which the Convention intends them to be, unless it is apparent that it has
misunderstood or overlooked some significant feature of English law or practice
which may, when properly explained, lead to the decision being reviewed by the
Strasbourg Court.
122. In R v Horncastle [2010] 2 AC 373 at para 11, Lord Phillips of Worth
Matravers, with the agreement of the rest of this court, rejected the submission that
it should hold itself to be bound by a clear statement of principle of the European
Court on the precise issue that was before it:
“The requirement to ‘take into account’ the Strasbourg jurisprudence
will normally result in the domestic court applying principles that are
clearly established by the Strasbourg court. There will, however, 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.”
123. In Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, para
48, Lord Neuberger MR, again with the agreement of the whole court, expanded
on this statement:
“This court is not bound to follow every decision of the European
court. Not only would it be impractical to do so: it would sometimes
be inappropriate, as it would destroy the ability of the court to
engage in the constructive dialogue with the European court which is
of value to the development of Convention law: see e.g. R v
Horncastle [2010] 2 AC 373. Of course, we should usually follow a
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clear and constant line of decisions by the European court: R (Ullah)
v Special Adjudicator [2004] 2 AC 323. But we are not actually
bound to do so or (in theory, at least) to follow a decision of the
Grand Chamber. As Lord Mance pointed out in Doherty v
Birmingham City Council [2009] AC 367, para 126, section 2 of the
1998 Act requires our courts to ‘take into account’ European court
decisions, not necessarily to follow them. Where, however, there is a
clear and constant line of decisions whose effect is not inconsistent
with some fundamental substantive or procedural aspect of our law,
and whose reasoning does not appear to overlook or misunderstand
some argument or point of principle, we consider that it would be
wrong for this court not to follow that line.”
124. It follows that the exceptionally delicate issues presently before the court
cannot be resolved by summarily applying the decisions of the European Court of
Human Rights in Hirst and Scoppola. It is necessary to consider the basis on which
the Strasbourg Court approached the relevant features of our domestic law.
125. What is the rationale of the statutory rule excluding convicted prisoners
from the franchise? In his Second Treatise of Government (1690), John Locke
considered that because (as he saw it) all social obligations were ultimately
founded upon implicit contract, a criminal, having repudiated that contract, had no
rights. He had repudiated the collective security which was the purpose of the
social contract and returned to the pre-existing state of nature in which force was
the only law. It followed, Locke thought, that he “may be destroyed as a lion or
tyger, one of those wild savage beasts, with whom men can have no society nor
security.” The same view was taken by others who identified the social contract as
the foundation of the state, including Thomas Hobbes and Jean-Jacques Rousseau.
126. It is tempting to regard the present British rule about prisoners’ voting
rights as a distant reflexion of this view, and plenty of commentators have
succumbed to the temptation. But like most rhetoric, this is misleading. The
disenfranchisement of convicted prisoners is not and never has been a form of
outlawry, or “civil death” (the phrase sometimes used to describe the current state
of the law on prisoners’ voting rights). On the contrary, until the 1960s, it was
mainly the incidental consequence of other rules of law. In the first place, until
1870, convicted felons automatically suffered the confiscation of their real
property, as a result of which they could not meet the property qualification which
at that time was part of United Kingdom electoral law. The Forfeiture Act 1870
abolished the rule of confiscation. But section 2 partially preserved its effect on the
franchise by providing that those sentenced for treason or felony to a period of
imprisonment exceeding one year could not vote in parliamentary elections until
they had served their sentence. This remained the position until the Criminal Law
Act 1967 abolished the distinction between felonies and misdemeanours and
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amended section 2 of the Act of 1870 so that it applied only to those convicted of
treason. Secondly, section 41(5) of the Representation of the People Act 1918
provided that “an inmate … in any prison, lunatic asylum, workhouse, poorhouse,
or any other similar institution” was not to be treated as resident there. This had the
unintended effect of excluding from registration not only convicted prisoners, but
prisoners on remand, an anomaly which was not corrected until the Representation
of the People Act 2000 allowed remand prisoners to be treated as residing in the
place where they were in custody. Thirdly, even those prisoners who before 1969
were eligible to vote were generally unable in practice to do so because of the
absence of the necessary administrative arrangements. Except in the case of
servicemen, postal voting was not introduced until the Representation of the
People Act 1948, and was not available generally until the Representation of the
People Act 2000.
127. The modern law on this subject can be said to date from the Speaker’s
Conference on Electoral Reform, which sat from 1965 to 1968 and issued its final
report in February 1968 (Cmnd 3550). The conference was a non-partisan body
drawn from all parties in the House of Commons and meeting under the
chairmanship of the Speaker. It gave systematic consideration to all aspects of
electoral law including the franchise and, apparently for the first time, the question
of prisoners’ voting rights. Only its conclusions, not its reasons, were published,
but the final report records that it considered evidence and documentation from
many sources. It unanimously recommended that all convicted prisoners should be
ineligible to vote. This recommendation was accepted, and effect was given to it
by section 3 of the Representation of the People Act 1969.
128. The rationale of the exclusion of convicted prisoners from the franchise is
as complex as the rationale for imprisonment itself. Section 142(1) of the Criminal
Justice Act 2003 provides:
“Any court dealing with an offender in respect of his offence must
have regard to the following purposes of sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
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(e) the making of reparation by offenders to persons affected by
their offences.”
All of these factors, except in the earlier period for (e), have been features of
sentencing policy for very many years. For my part, I doubt whether the
disenfranchisement of convicted prisoners can realistically be regarded as an
additional punishment or a deterrent, and it may at least arguably be said to work
against the reform and rehabilitation of the offender. But in my opinion, it has a
more fundamental rationale. All criminal law, and penal policy in particular, has
an important demonstrative function, which underlies all five of the statutory
sentencing factors. The sentencing of offenders, and imprisonment more than any
other sentence, is a reassertion of the rule of law and of the fundamental collective
values of society which the convicted person has violated. This does not mean that
the offender is disenfranchised because he is unpopular. Nor does it mean that he
is regarded as having lost all civil rights or all claims against society, which is why
the expression “civil death” is inappropriate. The present rule simply reflects the
fact that imprisonment is more than a mere deprivation of liberty. It is a temporary
reclusion of the prisoner from society, which carries with it the loss of the right to
participate in society’s public, collective processes. Similar principles appear to
underlie the exclusion of convicted offenders from the franchise in the many other
jurisdictions which practise it, whether on an automatic or a discretionary basis,
and in particular those in which the suspension or abrogation of voting rights may
be imposed independently of a prison sentence or continue after a term of
imprisonment has been served.
129. Fundamental to this approach, and to the automatic character of the
exclusion of convicted prisoners from the franchise is the principle that sentences
of imprisonment are imposed only for the more serious offences. This has always
been a central feature of sentencing policy. Currently, section 152 of the Criminal
Justice Act 2003, repeating previous statutory provisions and the long-standing
practice of the Court of Appeal (Criminal Division) provides:
“(2) The court must not pass a custodial sentence unless it is of the
opinion that the offence, or the combination of the offence and one
or more offences associated with it, was so serious that neither a fine
alone nor a community sentence can be justified for the offence.”
The only exceptions relate either to a very few grave offences where the sentence
is prescribed (such as murder, some firearms offences, repeated violence or Class
A drug trafficking) or to a separate sentencing regime for dangerous repeat
offenders. The section also provides that it does not apply in cases where the
offender has refused to accept or comply with the conditions on which some lesser
sentence would have been imposed. These principles are broadly reflected in the
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composition of the prison population. As Lord Mance has pointed out, only 8 per
cent of persons convicted of an offence in England and 15 per cent in Scotland are
sentenced to imprisonment. A statistical breakdown of the prison population as at
30 September 2010 suggests that 85% of prisoners serving sentences of less than
five years were convicted of violent or sexual offences, robbery, burglary, theft,
handling, fraud, forgery or drug offences. No doubt the threshold of seriousness
for the passing of a sentence of imprisonment will vary in practice from one
country to another. Different offences will perfectly properly be regarded as
having more serious implications for some societies than for others. The United
Kingdom is widely thought to have a relatively low threshold, but I am not aware
that any comprehensive comparative study has been carried out which takes
account of the underlying patterns of criminality.
130. Although article 3 of the First Protocol is in unqualified terms, the
jurisprudence of the Strasbourg Court has acknowledged from the outset that the
right to vote may be subject to limitations of a kind which is familiar in the caselaw governing other Convention rights. The limitations must pursue a legitimate
aim by proportionate means and must not be such as to impair the essence of the
right: see Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, para 52;
Matthews v United Kingdom (1999) 28 EHRR 361, para 63. It has generally been
held that the essence of the right is not impaired if it does not thwart the free
expression of the opinion of the people as a whole: see Holland v Ireland
(Application No 24827/94) (unreported) 14 April 1998. It follows that the
exclusion of certain categories of person from the franchise may be compatible
with the Convention notwithstanding that as far as those persons are concerned the
exclusion is total while it lasts. The case-law has consistently emphasised that
these are matters on which the state enjoys a wide margin of appreciation. In Hirst
this was said to reflect the
“numerous ways of organising and running electoral systems and a
wealth of differences, inter alia, in historical development, cultural
diversity and political thought within Europe which it is for each
Contracting State to mould into its own democratic vision” (para 61).
131. The United Kingdom government argued before the Strasbourg Court in
Hirst that the objective of disenfranchisement was to serve as an additional
punishment. The court accepted that that was a possible rationalisation, and
regarded it as a legitimate objective, compatible with article 3 of the First Protocol.
The rule was nevertheless held to be incompatible because it was disproportionate,
“essentially as it was an automatic blanket ban imposed on all
convicted prisoners which was arbitrary in its effects and could no
longer be said to serve the aim of punishing the applicant once his
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tariff (that period representing retribution and deterrence) had
expired” (para 76).
The court considered the government’s argument that the exclusion “affected only
those convicted of crimes serious enough to warrant a custodial sentence”, and the
very similar argument put forward by an intervener that imprisonment was “the
last resort of criminal justice.” They appear to have rejected this argument on the
facts, observing that sentences of imprisonment are imposed for a wide range of
offenders and for periods from one day to life, and that because
disenfranchisement was automatic the sentencer had no opportunity to assess its
proportionality in any particular case (paras 77, 80).
132. The court considered that the absolute character of the rule disenfranchising
convicted prisoners and its application to all convicted prisoners put it beyond the
state’s margin of appreciation. They were fortified in this conclusion by their view
that there was no evidence that Parliament had weighed the proportionality of a
general exclusion. The court referred to the Speaker’s Conference of 1965-1968,
and the Home Office working party of 1998-1999, and acknowledged that
Parliament might be said implicitly to have endorsed their conclusions:
“Nonetheless [they concluded] it cannot be said that there was any
substantive debate by members of the legislature on the continued
justification in light of modern day penal policy and of current
human rights standards for maintaining such a general restriction on
the right of prisoners to vote.” (para 79).
133. The court concluded as follows, at para 82:
“Therefore, while the court reiterates that the margin of appreciation
is wide, it is not all-embracing. Further, although the situation was
somewhat improved by the Act of 2000 which for the first time
granted the vote to persons detained on remand, section 3 of the
1983 Act remains a blunt instrument. It strips of their Convention
right to vote a significant category of persons and it does so in a way
which is indiscriminate. The provision imposes a blanket restriction
on all convicted prisoners in prison. It applies automatically to such
prisoners, irrespective of the length of their sentence and irrespective
of the nature or gravity of their offence and their individual
circumstances. Such a general, automatic and indiscriminate
restriction on a vitally important Convention right must be seen as
falling outside any acceptable margin of appreciation, however wide
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that margin might be, and as being incompatible with article 3 of
Protocol No 1.”
134. Scoppola v Italy (No 3) (2012) 56 EHRR 663 was directly concerned with
the automatic lifetime exclusion from the franchise which was the consequence
under Italian law of the imposition of a sentence of life imprisonment. However,
the United Kingdom rule was indirectly in question, because the Grand Chamber
reviewed the decision in Hirst and the British government intervened to make
submissions about it. The Chamber had held that the Italian rule violated article 3
of the First Protocol because of its automatic character. The Grand Chamber held
that it was compatible with the Convention. It found that the rule pursued the
legitimate aim of “preventing crime and enhancing civil responsibility and respect
for the rule of law” (para 90). Turning to proportionality, it held that
notwithstanding the statements in Hirst the test of proportionality did not require
that disenfranchisement should be discretionary. It could be automatic, provided
that the principles governing its imposition were sufficiently related to the gravity
of the offence. The provisions of the relevant Italian law were held to be
proportionate, unlike the English rule, because they disenfranchised only those
convicted of particularly serious offences and those sentenced to the longer terms
of imprisonment. Subject to the point about the absence of judicial discretion, the
Grand Chamber reaffirmed the decision in Hirst.
135. Accordingly, the Strasbourg Court has arrived at a very curious position. It
has held that it is open to a Convention state to fix a minimum threshold of gravity
which warrants the disenfranchisement of a convicted person. It has held that the
threshold beyond which he will be disenfranchised may be fixed by law by
reference to the nature of the sentence. It has held that disenfranchisement may be
automatic, once a sentence above that threshold has been imposed. But it has also
held that even with the wide margin of appreciation allowed to Convention states
in this area, it is not permissible for the threshold for disenfranchisement to
correspond with the threshold for imprisonment. Wherever the threshold for
imprisonment is placed, it seems to have been their view that there must always be
some offences which are serious enough to warrant imprisonment but not serious
enough to warrant disenfranchisement. Yet the basis of this view is nowhere
articulated. It might perhaps have been justified by a careful examination of the
principles of sentencing in the United Kingdom, with a view to demonstrating that
they involve the imprisonment of some categories of people for offences so trivial
that one could not rationally suppose them to warrant disenfranchisement. That
would be an indictment not just of the principle of disenfranchisement but of the
sentencing principles themselves. However, no such exercise appears to have been
carried out.
136. I confess that I also find it surprising that the Strasbourg Court should have
concluded in Hirst that the United Kingdom Parliament adopted the present rule
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per incuriam, so to speak, in 1969, without properly considering the justification
for it as a matter of penal policy. The absence of debate to which the court referred
reflects the attention which had already been given to the issue by the Speaker’s
Conference, and the complete consensus on the appropriateness of the voting ban.
137. Without the decisions in Hirst and Scoppola, I would have held that the
question how serious an offence has to be to warrant temporary
disenfranchisement is a classic matter for political and legislative judgment, and
that the United Kingdom rule is well within any reasonable assessment of a
Convention state’s margin of appreciation. However, the contrary view has now
been upheld twice by the Grand Chamber of the European Court of Human Rights,
and is firmly established in the court’s case-law. It cannot be said that the Grand
Chamber overlooked or misunderstood any relevant principle of English law. The
problems about the view which the court ultimately came to were fairly pointed
out in both cases in the course of argument. Whatever parliamentary consideration
may or may not have been given to the issue in 1969, it has undoubtedly received a
great deal of parliamentary attention more recently, in debates which were drawn
to the Grand Chamber’s attention in Scoppola but made no difference to its view.
There is no realistic prospect that further dialogue with Strasbourg will produce a
change of heart. In those circumstances, we would be justified in departing from
the case-law of the Strasbourg Court only if the disenfranchisement of convicted
prisoners could be categorised as a fundamental feature of the law of the United
Kingdom. I would regard that as an extreme suggestion, and in agreement with
Lord Mance I would reject it.
138. A wider and perhaps more realistic assessment of the margin of
appreciation would have avoided the current controversy. But it would be neither
wise nor legally defensible for an English court to say that article 3 of the First
Protocol has a meaning different from that which represents the settled view of the
principal court charged with its interpretation, and different from that which will
consequently apply in every other state party to the Convention.
