Voting by Convicted Prisoners: Summary of Evidence - Political and Constitutional Reform Committee Contents


Report



1.  We are publishing this short Report to make the evidence we have heard readily accessible in advance of the debate on voting by prisoners which is to take place on 10 February 2011.

2.  We heard on 1 February from:

  • Lord Mackay of Clashfern, the former Lord Chancellor,
  • Aidan O'Neill QC, a leading human rights lawyer, and
  • Dr Eric Metcalfe, Director of Human Rights Policy at JUSTICE.

3.  The main purpose of the session was to gather expert evidence on how United Kingdom law in this area relates to the European Convention on Human Rights as interpreted through the binding judgments of the European Court of Human Rights (henceforth 'the European Court').

4.  We took the evidence summarised in this Report with a view to exploring the current legal position, not with a view to questioning whether extending the right to vote to convicted prisoners in certain circumstances would be philosophically, morally or politically justifiable. While recognising that this evidence is neither exhaustive nor conclusive, we hope it will help the House in its deliberations.

Importance of the right to vote and the principle of proportionality

5.  Aidan O'Neill identified the principle behind the European Court's decision in Hirst v United Kingdom (No. 2) and other related cases that "the deprivation of civil rights is too important to be assumed to be tied up completely with the deprivation of liberty".[1] Lord Mackay made clear that the right to vote "is not an absolute right" and "the Court does recognise that there may be situations in which the right to vote may be restricted or removed".[2] Aidan O'Neill told us that in the view of the Court, the ability to vote needed to be treated as a right and not a privilege:

This is not about giving the prisoners the right to vote. It is setting out circumstances in which that right may lawfully be taken away.[3]

What the European Court is telling us is, 'Take seriously the right to vote such that it is important. It is so important that if one is going to deprive anyone of it, it has to be done by an individual decision on those individual circumstances'.[4]

I am here as a lawyer ... to tell you what I think we are obliged to do. My own personal views really count for nothing as to what we ought to be doing. What I would say is that it is quite clear from the decisions of the European Court of Human Rights that ... a distinction has to be made for how long you imprison somebody and for how long and whether you deprive them of their civil rights, including the right to vote. It is not good enough, it is not giving enough respect for the importance of the right to vote simply to say, 'You are in prison for four years and automatically you lose the right to vote for four years'. There has to be an element of individual decision-making.[5]

6.  Eric Metcalfe expanded on this point:

it is the basic principle of proportionality: the punishment should fit the crime. ... in hundreds of courts across the country this morning ... judges will be sentencing people who have been convicted of offences. They will have regard to sentencing reports, probation reports, social worker assessments, medical evidence and so forth. None of that goes on in relation to the punishment of disenfranchisement and this is the Grand Chamber's point. You have to have an assessment by the court about whether the punishment fits the crime. ...

... What the Court is saying is that you cannot disenfranchise an entire category of people—and in this case the category is between 70,000 to 80,000 people nation-wide—on a blanket basis. You have to have individualised assessment in each case.[6]

7.   Lord Mackay on the same lines quoted from the judgment of the European Court:

the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned ... As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.[7]

He also quoted from the judgment in December 2010 of Lord Justice Laws in the Court of Appeal in the case of R (Chester) v The Secretary of State for Justice:

The law is that a blanket ban is impermissible, and there must be a discernible link 'between the sanction and the conduct and circumstances of the individual concerned' (Hirst paragraph 71). The government will no doubt consider carefully whether compliance with these standards requires a decision-making role in specific cases to be accorded to the judiciary.[8]

8.  While neither of these judgments specifies how a "discernible and sufficient link" is to be established, both suggest that it might be achieved through giving judges a decision-making role on disenfranchisement as part of their duties in sentencing convicted criminals. Lord Mackay told us, however, that "you certainly could not hand it over to the judges without very full elucidation of the rules", and that to fail to do so "would be utterly a derogation of the duties of Parliament in laying down the law".[9]

Proportionate disenfranchisement

9.  Lord Mackay referred to the Hirst judgment for examples of situations in which convicted criminals might reasonably be deprived of the right to vote for a certain period:

restrictions on electoral rights could be imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations.[10]

He also suggested that an argument could be made for restricting the voting rights of people convicted of crimes involving "a fundamental attack on the basic human rights of the victim".[11] Aidan O'Neill referred, however, to the case of Scoppola, in which the European Court found that the disenfranchisement of a murderer by Italian law was illegal because it was automatically linked to the crime he had committed, rather than considered on an individual basis.[12] But he also suggested that a consequence of decoupling disenfranchisement from imprisonment could in some cases be that a convicted criminal would be disenfranchised for a longer period than any term of imprisonment imposed.[13]

Conflict between United Kingdom statute law and international law

10.  The three witnesses were clear that the current situation, under which all convicted prisoners lose the right to vote for as long as they are imprisoned, is in breach of the European Convention, because "it strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate".[14] As Lord Mackay told us,

It has nothing to do with the nature or gravity of their offence and their individual circumstances and that, they say, is wrong. That is the decision in Hirst and it stands still. What it says effectively is a blanket ban is unlawful under the Human Rights Convention.[15]

Incompatibility of any blanket ban based on prison sentence length

11.  Moreover, the view of our witnesses was that a change in the law to limit the right to vote by reference to the length of prison sentence imposed would fail to put right the breach found by the European Court:

A blanket ban based on period of sentence, whatever the length, if it is one year or if it is 20 years, is going to be incompatible with the judgment in Hirst.[16]

In Frodl v Austria it was a one-year ban and that was found to be incompatible. In Scoppola it was a three year ban. The problem is the blanket nature of the ban, of the lack of individual decision-making on it, not the length. So there is not a magic figure that with one leap we are free.[17]

12.  We have heard that an element of individual assessment would need to be introduced into the process of deciding whether and for how long a convicted criminal should be disenfranchised, if the Government and Parliament are to satisfy the judgments of the European Court. We have heard no suggestion as to who could fulfil this role if not the sentencing judge.

Possible sanctions against the United Kingdom

13.  All three of our witnesses were clear that a judgment of the European Court is binding on a country that is a party to the case. Lord Mackay told us that failure to comply would lead to sanctions:

If you persist in ignoring a judgment of the court then I have no doubt whatever that the right to damages becomes a realistic expectation[18]

14.  He also told us that the Courts would be unlikely to award damages if the law were to be changed in a way that constituted a genuine attempt to remedy the situation in the light of the judgments, even if the European Court decided subsequently that the remedy was insufficient:

if the Parliament of the United Kingdom makes a genuine effort to deal with the Hirst problem, if I can call it that, I think it highly unlikely that they would sever any damages immediately if the court found that their solution was not absolutely up to the mark. In other words, we have tried hard to do what the court said; this is our best endeavour and the court have refused to tell us in advance what would be good enough. Therefore, I do not think it is at all likely that we would suffer any damages as a result of a second failure so long as it was seen to take account of what the European Court is saying and carefully weighing the kind of issues they raised as being necessary to consider before you deprive someone of the franchise.[19]

Importance of the rule of law

15.  In any case, however, Lord Mackay saw the prospect of awards to prisoners as a secondary consequence of failing to respond to the judgments:

our country has embraced the rule of law for many, many generations and it still is bound by the rule of law. Therefore, when we have taken on legal obligations, as we have under the Convention of Human Rights and Fundamental Freedoms in Europe, the rule of law requires us to obey the courts that are set up under that Convention whose judgments are binding. I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law. Indeed, that is how it happens. The political decisions are made effective by acts of Parliament, which are then enforced by the enforceability powers of the State through the courts of law and so we are bound as a country. We have taken that on, to be bound by the rule of law, and that is the way it stands. Therefore, it is absolutely binding on us to obey the judgments of the European Court. Simply to say, 'Leave it till tomorrow', or, 'Leave it till the next year', or just say nothing about it, 'Let's ignore it', is not in accordance with the rule of law. I think to do that would be very wrong.[20]

if you set up a system that includes decisions by the courts, until you change that system you are bound by these judgments. Now, different judges take different points of view and they are all individuals and none of them are perfect ... but if you want to change the system then you have to do that in an orderly fashion.[21]

16.  At several points, he reinforced the importance of maintaining the rule of law, and of the Government and Parliament setting an example in this sphere:

if we believe in the rule of law, we are just as much bound to observe the decisions of the European Court on matters within their competence as we are to obey the decisions of our own courts in matters within their competence.[22]

personally, I do not believe that the rule of law should depend on what the punishment is. People are expected in our country to obey the law simply because that is what the law is that they are bound by.[23]

the rule of law is very valuable to us. We tend to take it for granted but we need to make sure that we do not let it slip.[24]

17.  Eric Metcalfe made a similar point:

the United Kingdom cannot have its cake and eat it. It cannot say, 'We are abiding by our obligations under international human rights law', and at the same time refuse to implement the judgments of the court that has said, 'You are in the wrong'.[25]

International political consequences of failing to comply

18.  Lord Mackay also reminded us of the political context in which the Court had been established:

the Convention ... was initiated, I think, by the United Kingdom originally to deal with the situation of the persecution, terrible persecution, of minorities in Germany. It was hoped that by this kind of legislation—convention, agreement, legally binding—that that sort of treatment of minorities in the future would never happen[26]

19.  Aidan O'Neill, meanwhile, drew our attention to what he saw as the political consequences of failing to respond to the judgments:

In terms of the sanction, clearly suspension from the Council of Europe is not going to happen on this point. What is important, however, is the example one gives. One of the big issues facing the European Court of Human Rights is teaching newly democratic States about democracy. One of its biggest client cases is Russia. Another one in terms of democracy is Turkey. It is a problem with the Council of Europe mechanisms that some States simply do not fix their systems as they should do and it would be a great pity if a long-established State—the United Kingdom, which was there at the founding and there at the drafting—were to set an example to other States in the Council of Europe that they do not have to abide by the law. This is where politics and international relations come in. It is incredibly important that the rule of law be respected at an international level because if we have law/law then we do not have war/war.[27]

Public and political opinion

20.  Our witnesses also commented on the fact that public opinion appears to be largely against allowing convicted prisoners to exercise the right to vote, and that this opinion may be reflected in the House. Aidan O'Neill told us:

The law is not simply about majorities, about power being exercised by the State. It is also fundamentally ... about the protection of minorities against the will of the majorities sometimes. In some ways you can say, 'That is antidemocratic; that is lacking in sovereignty'; but it is an essential part to the notion of human rights that we now have: that individuals and minorities are protected by them.[28]

21.  Lord Mackay concurred:

I regard the position of the House of Commons, particularly, as very difficult indeed … The House of Commons has not followed public opinion in relation to the death penalty, for example … The problem is that if you go along with public opinion you may well find yourself with oppressed minorities.[29]

Conclusion

22.  The House is being asked to decide whether it both "acknowledges the treaty obligations of the UK" and "supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand".[30] The evidence we have received from our witnesses, including a former Lord Chancellor, is that, however morally justifiable it might be, this current situation is illegal under international law founded on the UK's treaty obligations.


1   Q 9 Back

2   Q 1 Back

3   Q 42 Back

4   Q 9 Back

5   Q 2 Back

6   Q 8 Back

7   Hirst v United Kingdom (No. 2) (App. No. 74025/01), para 71 Back

8   [2010] EWCA Civ 1439, para 35 Back

9   Q 16 Back

10   Q 1, quoting Hirst para 71 Back

11   Q 38 Back

12   Q 38 Back

13   Q 9 Back

14   Hirst, para 82 Back

15   Q 3, quoting Hirst, para 82 Back

16   Q 43 [Eric Metcalfe] Back

17   Q 43 [Aidan O'Neill] Back

18   Q 19 Back

19   Q 21 Back

20   Q 13 Back

21   Q 14 Back

22   Q 3 Back

23   Q 19 Back

24   Q 52 Back

25   Q 28 Back

26   Q 3 Back

27   Q 13 Back

28   Q 35 Back

29   Q 41 Back

30   Motion relating to Voting by Prisoners tabled for debate on Thursday 10 February 2011 Back


 
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Prepared 9 February 2011