Prisoner Voting

PV3A

Written evidence submitted by John Hirst

Mrs Eleanor Laing The opening remark of Mrs Eleanor Laing: "Our purpose as a Committee in holding this evidence session is to attempt to shed some light on the subject of the voting rights of prisoners".

A reading of my case, Hirst v UK (No2), in my view, sheds more than enough light on the subject of the voting rights of prisoners. For example, at para: "63. The present case highlights the status of the right to vote of convicted prisoners who are detained". It is, without doubt, the leading legal authority.

This, then, calls into question the purported authority of the HoC Political and Constitutional Reform Committee to investigate a matter already decided by the highest court in Europe.

Mrs Eleanor Laing goes on to say that it is: "a subject that has had a lot of heat generated about it in the House of Commons and elsewhere in recent weeks particularly".

This can be dismissed as a harmattan or Santa Ana, that is, blowing a hot wind. However, what cannot be dismissed so lightly is the authority of the ECtHR and its decisions. And this is why the UK is now in a lot of trouble with Europe over my case.

Mrs Eleanor Laing goes on to say that: "There have been opinions, of course, on all sides of the argument and we are very grateful for having three differing opinions before us this morning".

The UK argued its side before the ECtHR in defence of my application containing my arguments, and the Chamber decided in my favour. The UK then appealed the Chamber decision before the Grand Chamber and the UK lost its appeal. That is the end of the arguments. Furthermore because the UK had argued that giving the vote to convicted prisoners would offend public opinion, the Court addressed this point at para: "70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion". And, in his concurring opinion, Judge Caflisch eloquently summed it up at para. 4 "Accordingly, concluded the Government, the finding of a violation would be a surprise and offensive to many (judgment, §§ 47 and 49). That may well be so, but the decisions taken by this Court are not made to please or indispose members of the public, but to uphold human rights principles". Therefore, this is not an issue for the court of public opinion. The Court applies the Actio Popularis principle which is designed not only to protect vulnerable groups from abuse by the state, but also to protect them from victimisation by wider society. It was presumptuous of Mrs Eleanor Laing at the start to claim, before hearing the witnesses, that there are: "three differing opinions before us this morning".

Mrs Eleanor Laing states: "We also appreciate that there are two aspects to this matter as far as the political situation is concerned: one is the straightforward question about when the right to vote should be withheld and the other is the interaction between the European Court, the European Convention and our own laws and law-making process. We are very grateful to you for coming to help clear up these difficulties this morning and what we hope to be able to do is to prepare, as a result of this evidence session, information that will help Members of Parliament when this matter is debated because it ought to be debated on the real facts, not upon conjecture or political prejudice".

In my view, the Committee fails to appreciate the legal position. It is explained by the Court at paras: "59. As pointed out by the applicant, 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, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle (Mathieu-Mohin, § 51, citing X. v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41)". "60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be given a margin of appreciation in this sphere". "62…For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned…Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws which it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 669949/01, § 28, ECHR 2004-V)". The answer to the question when the vote can be withheld is in very limited circumstances for example in cases of electoral fraud and abuse in a public office. Therefore, this aspect is straightforward legally speaking and it does not help when politicians attempt to interfere with the authority of the Court and attempt to complicate the matter.

The second aspect "the interaction between the European Court, the European Convention and our own laws and law-making process" is rather more complex. The starting point is the Treaty of London 1949 (The Statute of the Council of Europe). The UK signed up to this and it is binding upon the UK. Fast forward to February 2010, and the Interlaken Conference at which the Interlaken Declaration was adopted and this is also binding on the UK. It needs to be borne in mind that the Interlaken process originally started in life as the brainchild of the UN, and relates to sanctions for rogue or pariah states to force them to toe the line. The Council of Europe later adopted the Interlaken process. I have to say that all of this is little understood in the UK, because what happens over the English Channel is deemed to be foreign and of no or little significance to the UK. However, perhaps it is now time to wake up and smell the coffee? The Lisbon Treaty has brought a shift in the balance of power in Europe, particularly ratification of Protocol 14 (which gave the Court and Council of Europe new powers) and allows for Rule 11 ‘infringement proceedings’ to be brought against a Member State for failing to abide by the Convention and Court decisions. The UK has failed in both these respects and this is why the UK is now in deep trouble across the English Channel in Strasbourg. This is the first time in the history of the Convention that a Member State is in danger of feeling the full force of the power of the Council of Europe. With my case I made history, I would caution against the UK making history by losing in a challenge to the authority of the Council of Europe. I would advise a period of quiet reflection rather than knee-jerking and rash decision-making, because every action has a reaction.

Mrs Eleanor Laing states: "We are very grateful to you for coming to help clear up these difficulties this morning and what we hope to be able to do is to prepare, as a result of this evidence session, information that will help Members of Parliament when this matter is debated because it ought to be debated on the real facts, not upon conjecture or political prejudice".

Prisoners live in hope (for example, The Shawshank Redemption) which is contrary to the wording above the gates to Dartmoor Prison: "Abandon all hope ye who enter here". In my view, the witnesses did help explain (not very satisfactorily in places) but did not clear up "these difficulties". What is there to debate? My case exposed that Parliament abdicated responsibility when it had the opportunity and should have debated the issue of ‘Whether convicted prisoners should have the vote?’. As explained above, public opinion is excluded. Therefore, it begs the question why Lord Falconer decided to hold two consultation exercises? In any event, Frodl v Austria has made these redundant. Some smart alecs then decided that a solution to my case would be to belatedly debate the issue in Parliament, ‘Whether convicted prisoners should have the vote?’, vote against it, then think that that is the end of the matter. Had they asked me first I would have told them the brutal truth that it would not satisfy the UK’s obligations under the Convention. The only way to satisfy the Council of Europe is to fully comply with the judgment in my case. Neither non-compliance nor minimal compliance will satisfy the CofE. Of course, any debate should "be debated on the real facts, not upon conjecture or political prejudice". Leaving the debate issue aside, my case has attracted far too much conjecture and political prejudice. And, it is these two factors which must be tackled head on.

Lord Mackay of Clashfern is right to point out that "The judgments in the European Court of Human Rights are a bit different from ours in form and so on".

However, he fails to explain why this is the case. In Europe it is Roman civil law, whereas in the UK it is English law based upon common law principles. (In Scotland, it is also Roman civil law). What this means is that those in the UK who learn English law by the traditional black letter of the law teaching method fail to grasp the law from the European law mentality. I did not make the same mistake.

Lord Mackay of Clashfern states: "I have to say at the end of all this there are extremely difficult questions, probably political questions, but exactly what the law is going to be in relation to this is not all that easy to say. I just want to point that out because the court have said, "What you have done is wrong. You must go away and think again." But they have not told us in any detail what would meet their criteria. They say, "That is not our business. We are here to judge what you have done, not to tell you what to do". It is not the most helpful situation, I have to say, for people trying to be loyal to the court without getting into a muddle".

With all respect to Lord Mackay of Clashfern, he is out of his depth on this one. My case is simple, stick to it and it is simple. It’s a legal case. Political questions do not come into it. It’s easy to say what the law is in relation to prisoners’ votes, its Hirst v UK (No2). In my case, the Court originally refused to give the UK the guidance it sought because at that time there was not deemed to be a systemic failure and the Court was giving the UK the opportunity to sort the problem out itself under the margin of appreciation. Because the UK decided to ignore the Court judgment, this signalled that there was in fact a systemic failure in the UK and the Court then provided the necessary criteria in Frodl v Austria and the Court referred to it as the Hirst test. This is what the UK has to meet. It is trying to avoid this when the UK gets into a muddle. My advice is to keep it simple.

Lord Mackay of Clashfern states: "There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere." In other words, the detail is not laid out in the position".

There is a misconception in the UK that the margin of appreciation is the same as discretion. The Council of Europe has produced a document which explains the doctrine of the margin of appreciation, and rather helpfully explains how it was applied, on a case by case basis, in the Court’s case law, including in my case. It has been described as a face saver. Lord Falconer failed to appreciate this. When he read law at Queen’s College, Cambridge, it would not have been covered. There is a legal maxim "ignorance of the law is no excuse". The UK has been in Europe for long enough now that Lord Falconer could have taken a refresher course to update his out of date legal thinking. It was remiss of him, as the Lord Chancellor and Secretary of State for Justice, not to have kept up with the changing political landscape in Europe. It means that he misinformed Parliament, the public and the media as to the correct position of the UK.

Lord Mackay of Clashfern states: "But the court does recognise that there may be situations in which the right to vote may be restricted or removed because it is not an absolute right. The circumstances in which that can happen is the question that I think is for this Committee and for the House of Commons and eventually, possibly, if legislation is proposed, for the House of Lords".

It is not a question for this Committee, or for the HofC or HofL. The question has already been answered by the Court. Now it’s just a question of whether the UK is going to fully comply. Because not only has the Court found the UK guilty, but also the Parliamentary Assembly of the Council of Europe has recently debated and voted to condemn the UK I think it is worth quoting the following in full:

"Ms POURBAIX-LUNDIN (Sweden) – We have all joined this Organisation because we believe in the rule of law, democracy and human rights. The Council of Europe institution that is best known to the public is the European Court of Human Rights. The fact that a citizen in any of our member states can hand in a complaint to the Court is an outstanding sign of democracy that most people in the world can only dream of. In order for the Court to maintain its high public status, member states must implement its judgments.

A chain is never stronger than its weakest link. As is stated in the report, several member states have failed to implement the Court’s decisions, and this undermines the authority of the Court. I am particularly concerned by the situation in Russia. The Russians have started compensating successful applicants to the Court, but that is not enough. They must take general measures to ensure that there will not be similar violations in future.

Some states feel that the Court is against them and that it makes political decisions, but that is not true. Over the past decades, my own country, Sweden, has been convicted 25 times. It is certainly not a pleasant experience to have a judgment against you, either as an individual or as a state. Nevertheless, we must accept it. This is what we have agreed to; we have joined this Organisation and we must live up to it. What matters is the human dimension. The right of an individual to complain against a state is something that we should be proud of and work together for.

The Committee of Ministers has a responsibility to put pressure on the government in question to execute the Court’s judgment. We, as parliamentarians, have the ability and the duty to do so, too. If a member state has had many citizens who complained to the Court about almost the same matter, that is a signal to its government that something is really wrong in the country. It lies in the hands of member states to ensure that the Court does not end up with a heart attack – a complete breakdown. If every state does its homework in living up to the principles of human rights, democracy and the rule of law, I am sure that complaints to the Court will go down immensely.

I thank both rapporteurs and fully support both reports". http://assembly.coe.int/Main.asp?link=/Documents/Records/2011/E/1101261500E.htm

Lord Mackay of Clashfern states: I just read these words to you. You have to think what exactly they mean because I have not found it very easy to say exactly what they mean. If you remove a person’s right to vote at all, that right, so far as he is concerned, is completely ineffective. So how you remove the right of some and yet leave the rights effective is a somewhat difficult question; but it is one that we have to think about trying to resolve.

It is difficult for me to know if Lord Mackay of Clashfern is so out of touch to be giving evidence or whether he is now becoming senile. Article 3 of the First Protocol requires the state to ensure democracy extends to all its citizens. Whilst the state is free to arrange for itself how it complies with this, but because the UK was found guilty of human rights abuse the Committee of Ministers has to supervise execution of the Court’s judgment. The Court is stating that it and not the UK will be the final decider if the UK is complying with its obligations under the Convention. It cannot be right for the guilty to be judge in its own cause. The UK has proved it cannot be trusted. The UK has been dishonourable.

The rights under Article 3 of the First Protocol to be effective have to be guaranteed and this requires the state to act responsibly and not irresponsibly. The FCO is responsible to the Council of Europe for ensuring that the UK meets its obligations under the Convention. And the MoJ for ensuring that all the citizens in the UK get their human rights under the Convention and remedying breaches of human rights as adjudged by the Court. It is for the AG to advise the government of its legal obligations under international and European law. Power without responsibility is not a good idea. The separation of powers is meant to provide checks and balances against abuses of power. In the Prisoners Votes Case it has been shown that the doctrine has failed in the UK. The brutal truth and dealing with it is the UK’s only saviour right now.

Stephen Williams: If someone is going to be a better citizen then they should be able to exercise rights as a citizen in preparing them for the outside world. I would say that giving the prisoner the ability to think about the outside world and exercise the franchise is an important part of preparing them for the outside world. Is that a basic principle that any of you would agree with?

This is not about removing the vote and then giving it back close to release. It is not removing the vote in the first place, unless it can be justified in a minority of cases like electoral fraud or abuse in a public office.

Lord Mackay of Clashfern: Yes, certainly. I suggest that one aspect of this that may be considered is, assuming that you think that a prisoner deserves to be disenfranchised to start with, within some distance of his release or her release-I say "his or her" in every context-the right to vote could be restored to that person as a preparation. Just in line with what you are saying, Stephen, you want to prepare the people for going back into the outside world. Well, give them back the vote. You can link that to their conduct and so on because if it is within a certain time of release the conduct during the prison time will have an effect on that. So if it is related to the time of release and a certain distance back from that, it does, by itself, connect with the conduct and individual concerned. I think that is a possibility that I have not heard fully discussed before. I meant to raise it but it rises very conveniently in answer to Stephen’s question.

The Court was very clear that neither the Executive nor Parliament has the authority to remove the franchise from prisoners because they do not believe that prisoners are deserving of the vote. It must be removed by a judicial decision. The Court was clear that it is for the electorate to pick the elected and not vice versa. The reason why Lord Mackay of Clashfern has not heard it discussed before is because it is contrary to the decision of the Court in Hirst No2.

Lord Mackay of Clashfern: Now, they seem to say that that is possible; in other words citizen-like conduct is something that you can aim for and if disenfranchisement helps that might be all right.

The Court rejected the reasoning of the High Court and Parliament’s for the existing disenfranchisement. I know why Lord Mackay did not want to go into Kennedy LJ’s decision in my case. He abdicated responsibility when asked to rule on a simple matter of the incompatibility between s.3 of ROPA 1983 and Article 3 of the First Protocol of the Convention. Moreover, he deferred to Parliament in a case in which this doctrine was not applicable. He used the "hands-off" policy when he should have used the "hands-on" approach. In Canada the Supreme Court criticised Kennedy LJ’s reasoning in my case, stating that it was not an issue where deference to Parliament should have been shown. My barrister stated that he was intellectually dishonest. The ECtHR criticised Kennedy LJ for relying upon Sauvé No1 when it had been overruled by Sauvé No2. Human rights are not dependent upon citizen-like conduct, but are granted because the citizen is a human being. Even if the citizen is not a good person the vote cannot be removed. Save in the very limited examples already provided.

I am puzzled why Lord Mackay of Clashfern referred to para. 76 and then missed the point. Because I was a post-tariff lifer the government’s reasoning was flawed. At the post-tariff stage a lifer is no longer legally serving a punishment, therefore the extra punishment of disenfranchisement cannot be justified. A post-tariff lifer is in the treatment stage of his or her sentence. Lord Falconer in his consultation exercises did not wish to address this point, so his solution was to exclude all lifers including post-tariff lifers from the franchise. It is not possible to exclude lifers and post tariff lifers from the decision in Hirst v UK (No2), because the applicant who took the case was both a lifer and a post-tariff lifer. A person convicted of manslaughter established the human right to vote. In Frodl v Austria, the Court said it also extended to someone convicted of murder. In Greens and MT v UK, the human right applies to a rapist and paedophile respectively. Therefore, it is not the nature or seriousness of the crime nor length of sentence which is the determinative factor for disenfranchisement. They get the vote because they are all human beings in spite of their social status as prisoners.

Lord Mackay of Clashfern: The ultimate decision of the court in Hirst, of course, was that a blanket ban is unlawful. I should just refer you to paragraph 82 where it says, "Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing." They improved the situation in 2000 but they say, "It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate." 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.

Now, in answer to the question that the Chair put at the beginning, the second question, we are bound, as a State-the United Kingdom-as a signatory of the Convention and we are bound as a State to give effect to the judgment of the European Court. Of course, they have means of backing that up by awards of damages and the like but the essential point is that we are bound in law to observe these decisions and act accordingly.

It is a different situation from the European Court at Luxembourg and sometimes there is confusion; I am sure none here but there is confusion in some places about that. But this is the Convention that 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. It goes some distance in that direction but it is for us as a nation to observe, 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.

Lord Mackay of Clashfern gets there in the end. However, earlier on he sowed some seeds of confusion. What this case needs is clarity all along the line, if the UK is going to get its response right in time for 8 March when the UK next goes before the Committee of Ministers. The UK will only be in the clear if the CoM passes the final resolution. An interim resolution will still leave the Sword of Damocles hanging over the UK’s head.

Lord Mackay of Clashfern: Of course, all of you know better than I that what is reasonable is quite a difficult question. Anyway, he is leaving that question to the parliaments, the legislative bodies of the Contracting State.

I am afraid he lost the plot again here. Reasonableness is an English law determination. In Europe they use the twin tests of proportionality and legitimate aim. Judge Caflisch was not leaving what is reasonable in this case to the UK to decide at all. That falls to the Council of Europe. Under the Interlaken Declaration it was agreed that the European law principle of subsidiarity would apply. That is, the onus falls upon the 3 arms of the state to remedy the breach of human rights. This does not mean that the UK can add insult to injury.

He could have gone further in relation to Smith v Scott, and laid the blame at the door of Jack Straw for failing to amend the law following this ruling. And, Lord Mackay of Clashfern lost the plot again in relation to Laws LJ, in Chester CofA. Laws LJ, reverted back to Kennedy LJ, in my High Court application. Remember my case has since gone to Europe! Adam Wagner of UK Human Rights blog questioned whether Laws LJ, had fallen into my trap. Like I have said earlier, it is a legal minefield for those trying to step over the line. Laws LJ, not only erred in law but he also dismissed the simple solution to the Hirst problem without giving any reason for so doing. Court judgments are meant to be reasoned. He deferred to Parliament and abdicated responsibility. Someone as corrupt as this should not be sitting as a judge. No wonder the law in this country is in such a bad state! If Laws LJ, had done his job that he was entrusted to do he would have ruled in favour of Peter Chester and ordered that the MoJ amend s.3 of ROPA 1983 by the Secretary of State for Justice using his powers under s.10 of the HRA 1998 to make a remedial order and lay it before Parliament. I do not subscribe to covering up for each other when something is wrong.

Lord Mackay of Clashfern: But that is just an example and I think we have to think quite carefully about what are the justifications. If you decide, for example, that people committing violent crime of a certain level of gravity should be disenfranchised; why is that? Well, it could be said, for example, that if somebody is committing a violent crime he is damaging very severely the human rights of the person against whom the violence is being exercised. Therefore, you have to expect that at least when he goes to prison first he may not be very respectful to human rights generally and if he is legislating or taking part in the legislature in the sense of voting, then that is not a very adequate situation. Therefore, unless and until he has changed-as he comes near the end he may well be changed-then he should be disenfranchised. That is a possible line that one can take.

He has once again lost the plot and has totally ignored the ruling in Hirst v UK (No2)! Neither the HRA nor the Convention is about the balancing of one person’s human rights against another person’s. Both only relate to the victim being abused by a public authority, or being abused by the state. "Therefore, unless and until he has changed-as he comes near the end he may well be changed-then he should be disenfranchised. That is a possible line that one can take". For the record, a citizen does not get disenfranchised because of committing a criminal offence of violence and being imprisoned. Disenfranchisement can only be for example electoral fraud or abuse of a public office. The franchise is not based upon the good conduct of the citizen, but is based upon the citizen being a human being. If the UK took the line as suggested by Lord Mackay of Clashfern, the UK would be sunk.

Mrs Laing: That is very helpful and perhaps that is a guide to the margin that we have been discussing.

It is neither very helpful and no guide to the margin of appreciation. Since when has the ignorant praising the ignorant every assisted anybody? Remember "ignorance of the law is no excuse". Neither the Council of Europe nor I will let the UK off the hook with this one.

(More to follow)