Letter from the Chair of the Committee
to Rt Hon Jack Straw MP, Secretary of State for Justice, dated
21 July 2009
Hirst (No 2) v United Kingdom
During this session, the Joint Committee on
Human Rights will be continuing its practice, established in the
previous Parliament, of reviewing the implementation of judgments
of the European Court of Human Rights finding the UK to be in
breach of the European Convention on Human Rights (ECHR).
I am writing to ask for further information
about the Government's response to the judgment of the Grand Chamber
of the European Court of Human Rights in Hirst (No 2) v United
Kingdom. In that case, the Grand Chamber decided that the
current ban on prisoners' voting in the UK is disproportionate
and incompatible with the Convention right to participate in free
and fair elections (guaranteed by Article 3 of Protocol 1 ECHR).
That the relevant statutory provisions have never been subject
to a full parliamentary debate played a part in the decision of
the court. The statutory ban has also been declared incompatible
with Convention rights under Section 4 of the Human Rights
Act 1998 by the Court of Session in Scotland. We understand
that a further challenge to the blanket ban by Peter Chester,
a prisoner currently serving a life sentence, but who has served
the "tariff" set for his offence.[36]
The Committee last reported on this case in
its report on the Political Parties and Elections Bill (Fourth
Report of Session 2008-09), where we revisited our two previous
reports on human rights judgments, regretting the delay in the
Government's response to this judgment. We concluded:
It is unacceptable that the Government continues
to delay on this issue. The judgment of the Grand Chamber was
clear that the blanket ban on prisoners voting in our current
electoral law is incompatible with the right to participate in
free elections (paragraph 1.19)
The Government published its second stage consultation
on the issue of prisoners' voting on 8 April 2009. We have
seen the information provided by the Government to the Committee
of Ministers in April 2009, summarising the Government's position
and introducing the second stage of consultation. It indicates
that there may be some time after the consultation closes in September,
before the Government introduces any legislative solution to address
the breach identified by the Grand Chamber:
Following its conclusion, the Government will
consider the next steps towards implementing the judgment through
legislation.[37]
At its last meeting in early June 2009, the
Committee of Ministers reached a similar conclusion about the
delay in this case and indicated that it would be willing to consider
an interim resolution in respect of the delay by the UK on this
occasion, if progress were not made by December 2009. The Ministers'
Deputies:
[…] expressed concern about the significant
delay in implementing the action plan and recognised the pressing
need to take concrete steps to implement the judgment particularly
in light of upcoming United Kingdom elections which must take
place by June 2010 at the latest.[38]
During a debate on a probing amendment proposed
by Lord Ramsbottom to the Coroners and Justice Bill, on this issue,
one of our members, Lord Lester of Herne Hill, asked the Minister,
Lord Bach whether the Government would consider using the remedial
order process after the consultation was complete, in order to
ensure that the Government's proposals would be in force before
the next general election. Lord Bach replied:
We do not think that this is an appropriate issue
for a remedial order; it is an appropriate issue for both Houses
to decide whether and how this particular ruling of the European
Court of Human Rights should be brought into force. (HL Deb 15 July
2009)
We have already raised our serious concerns about
the delay in this case. We would be grateful if you could answer
a number of questions on the Government's second consultation
and other recent developments.
The Second Stage Consultation
In our last report on this issue, we asked the
Government to publish the responses to the first stage consultation,
in order to allow for more effective public and parliamentary
scrutiny of the Government's approach. In the Government's response
to our report, it did not deal with our request. The Second Stage
Consultation summarises the responses, but the responses themselves
are not publicly available, unless published by individual consultees.
1. We would be grateful if you could agree
to publish the responses to the first stage consultation—if
necessary, redacted to protect anonymity, if requested—to
allow for more effective parliamentary and public scrutiny of
the Government's next steps.
We note that the Government accepts that the
responses to its consultation was "heavily polarised".
Of 88 respondents, 41 responses argued in favour of
full enfranchisement and 25 responses argued in favour of
the status quo. The Government makes no comment on the fact that
a significant proportion of the responses to the consultation
argue in favour of full enfranchisement, an option rejected by
the Government before the consultation took place. We understand
that the Government does not support this option, but it would
be helpful if the Government could provide a more detailed response
to the arguments proposed by the individual respondents to its
consultation.
2. How does the Government respond to the
significant number of responses to the first consultation which
argued in favour of full enfranchisement? In particular, please
outline the consultation respondent's arguments in favour of full
enfranchisement and the Government's responses to them.
The Government's consultation proposes four
options for consultation, each based on the duration of sentence
being served by a prisoner (roughly one, two or four years and
a hybrid of two or four years). This would mean all prisoners
crossing a custodial threshold would automatically be deprived
of the right to vote. Only four respondents to the first stage
consultation argued in favour of a system of enfranchisement based
on duration of sentence.
3. Given the low numbers of respondents to
the first stage consultation who favoured this approach, we would
be grateful if you could explain why the Government has adopted
this approach.
In our earlier report on this issue, we noted
the conclusion of the Grand Chamber in Hirst that:
[The standard of tolerance required by the Convention]
does not prevent a democratic society from taking steps to protect
itself against activities intended to destroy the rights or freedoms
set forth in the Convention. Article 3 of Protocol 1, which
enshrines the individual's capacity to influence the composition
of the law-making power, does not therefore exclude that restrictions
on electoral rights are imposed on an individual who has, for
example, seriously abused a public position or whose conduct has
threatened to undermine the rule of law or democratic foundations
[…] The severe measure of disenfranchisement must, however,
not be undertaken lightly and the principle of proportionality
requires a discernible and sufficient link between the sanction
and the conduct and circumstances of the individual concerned.
4. We would be grateful if you could explain
the Government's view that maintaining a blanket ban for all prisoners
serving a custodial sentence over a set duration is justified,
proportionate and compatible with Article 3 of Protocol 1 ECHR.
Please specify any other similar arrangements which operate in
other Council of Europe States which have influenced the Government's
thinking on this issue.
5. In particular, we would be grateful if
you could explain how an absolute ban based on length of sentence
(a) allows for a sufficient link between the sanction, the offence
and the rule of law or its democratic foundations and (b) allows
for the consideration of the conduct and circumstances of each
individual offender.
The second stage consultation includes further
consultation proposals in respect of the involvement of judicial
discretion in removing the right to vote. During the debate on
the Coroners and Justice Bill in July 2009, Lord Bach explained
that the Government was "not entirely opposed" to allowing
each judge to consider an individual case on its merits. This
however is not provided for in any of the four options proposed
for detailed consultation. The consultation paper explains:
A system that places the decision on enfranchisement
or disenfranchisement completely on the sentencing court would
impose considerable burdens on the courts and on institutions
where individuals are currently held in custody. Fundamentally,
however, the Government agrees with the argument that ultimately
Parliament must debate and decide the extent of the franchise.
6. Please list the additional burdens on the
courts and on institutions where individuals are currently held
in custody which affected the Government's view on whether or
not sentencing courts should be responsible for decisions in respect
of the right of an individual prisoner to vote.
7. Why does the Government consider that it
would be inappropriate for Parliament to delegate the decision
on the extent of an individual's right to participate in elections
to the sentencing court?
The consultation explains the Government's view
that removal of the franchise is not "only a punitive measure"
in order to justify the decision on the bar being taken by politicians
rather than the independent and impartial trial judge. This appears
at odds with the Grand Chamber decision in Hirst which
refers to removal of the franchise as a sanction. As the Government
will understand, specific safeguards generally accompany the imposition
of criminal sanctions (Article 6 ECHR).
8. Please explain why the Government's view
that removal of the franchise should not be treated like any other
criminal sanction is compatible with the decision of the Grand
Chamber in Hirst and Article 6 ECHR.
Remedial Orders
9. We would be grateful if you could provide
reasons why the Government considers that the consideration of
both Houses of a remedial order on affirmative resolution will
not provide adequate opportunity to debate the issues explored
by the Grand Chamber in its decision and the Government's proposals
to remove the breach in Hirst.
The Committee of Ministers
10. We would be grateful if you could provide
us with any information which the Government has provided the
Committee of Ministers since its decision in June 2009 expressing
concern about the delay in this case and calling for a solution
before the next general election.
11. In particular, we would be grateful
if you could tell us:
(a) Whether the Government has made any commitment
to ensure that a solution will be in place before the next general
election; and
(b) Any steps which the Government intends to
attempt to meet this goal.
Further Convention challenges?
12. Please explain whether the Government
considers that the conduct of a general election before the blanket
ban in Section 3 of the Representation of the People Act
is removed will be compatible with the United Kingdom's international
obligations under the Convention, including Article 13 ECHR.
13. We would be grateful if you could provide
us with the details of any further Convention challenges pending
against the Government, either before our domestic courts or at
the European Court of Human Rights, based on the failure of the
United Kingdom to remove the blanket ban in Section 3 of
the Representation of the People Act 1983. Please include any
details of the grounds of the challenge and any Government response.
21 July 2009
36 Daily Mail, Child killer gets legal aid to launch
bid for vote (and you're paying), 10 July 2009. Back
37
Ministry of Justice, Information Note to Committee of Ministers,
8 April 2009. Back
38
CM/Del/Dec(2009)1059immediatE/08 June 2009; 1059th (DH) meeting,
2-4 and 5 (morning) June 2009-Decisions adopted at the
meeting. Back
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