Voting for Prisoners?

In the long-running skirmish over the issue of prisoner voting, a development in December (2013) has received rather less notice than it deserves, perhaps because politicians and the media were, along with everyone else, fast approaching the Christmas season.  On 18 December, a Report was published by the Joint Committee which had been set up to consider and report on the Draft Voting Eligibility (Prisoners) Bill produced by the current Government in November 2012.

A recap is probably necessary, given the twists and turns seen so far in this tangled tale, not yet ended.  The point at issue is the ban on convicted prisoners voting, found under the Representation of the People Act 2000, by which remand prisoners have the right to vote, but convicted prisoners are prohibited.  Some convicted prisoners brought an action to test the compatibility of the ban with rights under the European Convention on Human Rights, in which Article 3 of the First Protocol provides for free and fair elections.  In the Divisional Court, the judges regarded the national law as compatible, and refused leave to appeal. Lord Justice Kennedy also referred to the extent of the prohibition as “plainly a matter for Parliament, not for the courts”: R (Pearson) v Secretary of State for the Home Dept. [2001] EWHC Admin 239.

However, the road to Strasbourg remained open, and the prisoners’ litigation journey continued.  The issue, taken first to a chamber, was appealed to a Grand Chamber, where by 12 votes to 5 the European Court of Human Rights found a violation: Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41.  What was regarded as incompatible was what the European Court classed as a blanket ban.  An attempt was made to persuade the European Court to change its mind, when the same issue was amongst those arising in the later case of Scoppola v Italy (No. 3) (2012) 56 EHRR 663.  The UK Government was allowed to argue as an intervener, but failed to convince.

In the meantime, the Strasbourg Court’s view had been followed by courts in Britain, in this particular instance.  A declaration of incompatibility had been made when the issue was revived before (as it happened) a Scottish court, in Smith v Scott 2007 SC 345.  Courts are, under section 2 of the Human Rights Act 1998, not necessarily required to follow Strasbourg jurisprudence, but are only required to “take account of” it.  However the Supreme Court has recently explained that the issue was not one where a departure would be justifiable.  A Grand Chamber judgment should normally be followed, according to the Supreme Court, unless it is inconsistent with some fundamental substantive or procedural aspect of domestic law, and prisoner voting, although an issue on which reasonable people might easily disagree, was not such a fundamental aspect: R (Chester) v Secretary of State for Justice [2013] UKSC 63.

If the courts were appearing fairly compliant, attitudes in government and Parliament were a different matter.  The Labour Government’s reluctance to alter the law was amply demonstrated by stalling.  In his memoirs (Last Man Standing), the former Justice Secretary, Jack Straw, relates with pride that he had “spent three years ensuring that the government took no decision…I’d kicked the issue into touch, first with one inconclusive public consultation, then with a second.”  The former Minister, along with the prominent Conservative MP, David Davis, promoted a debate in the House of Commons on 10 February 2011, and by 234 votes to 22 (on what might be called a Straw poll) a resolution expressed support for the status quo on prisoner voting and more generally for the principle that such matters should be for democratically-elected lawmakers to decide.  When the issue was raised at Question Time in the Commons on 24 October 2012, the Prime Minister referred to the vote and said “no one should be in any doubt: prisoners are not getting the vote under this Government.”  The Labour and Conservative front benches, at least, have seemed to be intransigent on the particular issue, no doubt keen to appear tough on crime and tough on criminals.

The stand-off on prisoner voting is interesting and instructive, and students of Public Law will naturally want to consider its implications for the operation of the Human Rights Act 1998, and for principles such as the sovereignty of Parliament and the separation of powers, amongst other things.  Around the periphery of the issue arise other questions such as the extravagant interpretations given to declarations of rights and the UK’s adherence to (or withdrawal from) the ECHR.

However, at least for the moment, the UK’s membership means that the Government is obliged to comply as a matter of international law.  It was in response to a deadline set by the Strasbourg Court that the Government produced the Draft Voting Eligibility (Prisoners) Bill in November 2012, and arranged consideration by a Joint Committee, the committee which reported in December (HC Paper 924).

The Joint Committee had 12 members, 6 from each House.  Sliced another way, it was made up of 5 Conservatives, 4 Labour, 2 Liberal Democrats, and one crossbench peer, who was Lord Phillips of Worth Matravers, former President of the Supreme Court.  It was chaired by Conservative MP Nick Gibb (incidentally, a law graduate of the University of Durham).

Both the unanimity and the tenor of the Joint Committee’s report are quite significant.  On the particular problem, the Committee recommended that voting rights should be afforded to prisoners serving sentences of 12 months or less, noting that the current prohibition is both arbitrary and ineffective.  More important was their position on the wider issue.  It would, they thought, be “wholly disproportionate for Parliament to take the grave step of undermining the international rule of law, which the United Kingdom   has worked for many decades to defend and promote, for the sake of a small modification of domestic law” (para 235).  They recommended that the Government should introduce an appropriate Bill, at the start of the 2014-15 session of Parliament.

These recommendations may have come as something of a surprise (not to say rebuke) to members of the Government and to members of Parliament, and we have not yet reached the endgame.  But, when grandstanding is put aside, voting rights for some prisoners look more likely than before.  And the rule of law, a principle that may sometimes seem nebulous, can sometimes count for something in shaping what happens.

This blog was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Law Study Support sessions.