Letter to the Chair from Rt Hon Michael
Wills MP, Minister of State, Ministry of Justice, dated 8 October
2009
HIRST (NO
2) V UNITED
KINGDOM
Thank you for your letter dated 21 July,
in which you asked a number of questions about the Government's
implementation of the Hirst (No 2) judgment.
You will be aware from the Government's second
consultation paper, Voting rights of convicted prisoners detained
within the United Kingdom, published on 8 April 2009,
and from the Annotated Agenda notes published following the 1059th
meeting of the Council of Europe's Committee of Ministers' Deputies
(CoM) on 3 June, that the position of the UK Government remains
that there are legitimate reasons for removing a prisoner's right
to vote. The Government believes that the right to vote forms
part of the social contract between the individual and the State,
and that it is a proper and proportionate response to breaches
of that contract that result in imprisonment. However we take
our responsibilities under the European Convention on Human Rights
in respect of ECtHR decisions seriously.
You ask a number of specific questions in your
letter. For ease of reference, I have repeated these in this reply.
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.
My officials have prepared a copy of the full
individual responses (with some personal data redacted in accordance
with data protection legislation) which will be published and
sent to you under separate cover. It is worth adding that the
total number of responses received was 90, as opposed to the published
figure of 88. The difference is a result of an administrative
oversight within the Department. The responses not included in
the published consultation response were from JUSTICE and from
Steve Foster, an academic at Coventry University. Both supported
the full enfranchisement of prisoners, and had their responses
been included in the document would have increased the number
of those in favour of enfranchisement from 41, to 43.
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 respondents' arguments in favour of full
enfranchisement and the Government's responses to them.
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.
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 Government has made clear its opposition
to full enfranchisement for all convicted prisoners and conducted
the first stage consultation on that basis. Although we have taken
account of the number of respondents to the first consultation
paper who urged full enfranchisement, as the second consultation
paper notes, the responses to the first consultation paper were
heavily polarised. On the question of how far the franchise should
be extended to convicted prisoners in custody, the second stage
consultation paper notes that the majority of respondents made
strong representations for the introduction of either full enfranchisement
(41 responses, or approximately 47%), or continuing with
the UK's current policy of total disenfranchisement (22 responses,
or 25%),[39]
and many respondents made no comment or gave a "not applicable"
answer to many of the questions.
The reasons for the Government's proposals for
limited, rather than full, prisoner enfranchisement are set out
in the second stage consultation paper. On page 21 of that
paper, the Government states that it accepts that "it must
act in a way that is compatible with its obligations under the
ECHR [and] so any approach will need to be within the margin of
appreciation afforded to signatory states in applying Convention
rights." Therefore:
"The Government has reached the preliminary
conclusion that to meet the terms of the judgment a limited enfranchisement
of convicted prisoners in custody must take place, with eligibility
determined on the basis of sentence length."
Regarding the decision not to enfranchise prisoners
sentenced to four years and over, the consultation paper states
(pages 25-26):
"In line with its view that the more serious
the offence that has been committed, the less right an individual
should have to retain the right to vote when sentenced to a period
of imprisonment, the Government does not intend to permit the
enfranchisement of prisoners who are sentenced to four years'
imprisonment or more in any circumstances. The Government believes
that this is compatible with the ECtHR ruling in Hirst (No
2)."
Additionally, as the second stage consultation
document makes clear at page 24:
"Although few respondents to the first stage
consultation document actively agreed with a system of enfranchisement
based on sentence length, many respondents did not engage with
the question given their support for either full enfranchisement
or retaining a total ban; and nor was there a clear expression
of support for the alternative approach of the decision being
handed to sentencers.
The Government considers that, in general, the
more serious the offence that has been committed, the less right
an individual should have to retain the right to vote when sentenced
to imprisonment. Tying entitlement to vote to sentence length
would have the benefit of establishing a clear relationship between
the seriousness of the offence, or offences, and suspension of
the right to vote. The Government believes it would also be more
administratively straightforward to achieve than leaving discretion
to the sentencer. In addition, the Government is obliged to take
account of the degree to which any sentence length chosen as the
"cut off" point is compatible with the ECHR. In determining
the length of a custodial sentence, sentencers take into account
the nature and gravity of the offence and, in most cases, the
individual circumstances of the offender. Under these proposals,
the suspension of the right to vote will only occur where those
factors are such as to have led a sentencer to conclude not only
that the offence is such as to warrant a custodial sentence rather
than some other form of punishment, but also that a term of a
some length is appropriate."
You ask whether the Government's proposed approach
to enfranchisement arrangements for convicted prisoners has been
informed by practice in other Council of Europe Member States.
In fact, this was discussed in the first stage consultation paper.
This noted (pages 20-21) that policies within the (then) 41 Council
of Europe countries ranged from 18 that practised full or
virtually full enfranchisement to 13 (including the UK) who
maintained a blanket ban. Regarding those states that impose a
partial ban on prisoners' voting rights, it was noted that:
"For example, in Belgium, prisoners who
receive a sentence length of longer than 4 months are disqualified
[and] the period of disenfranchisement may actually exceed the
period of the sentence. Austria disenfranchises prisoners serving
more than one year, while in Italy, those serving a sentence of
five years or more are disqualified."
There is, therefore, no uniformity on this issue,
and a number of Contracting States do place restrictions on the
right to vote based on sentence length. As the Grand Chamber noted
(at paragraph 84):
"In a case such as the present, where Contracting
States have adopted a number of different ways of addressing the
question of the right of convicted prisoners to vote, the Court
must confine itself to determining whether the restriction affecting
all convicted prisoners exceeds any acceptable margin of appreciation,
leaving it to the legislature to decide on the choice of means
for securing the rights guaranteed by Art 3 of Protocol No
1".
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?
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.
The Government has consistently been clear that
it considers that for an issue as important as prisoner voting
rights, upon which strong and often contrary views are held, Parliament
should have the opportunity to debate the principles behind prisoner
enfranchisement and the competing interests at stake and to assess
the proportionality of any measures taken to restrict the right
to vote. Further, it is right that in general Parliament should
set the legislative threshold or thresholds at which convicted
prisoners ought to retain the right to vote or have that vote
restricted.
The Government accepts, of course, that any
restriction upon the right to vote must be proportionate, but
for the reasons set out above, namely that the sentencing decision
itself takes into account the nature and circumstances of the
offence and the individual circumstances of the offender, it considers
that legislative thresholds for disenfranchisement based on sentence
length may in principle be a proportionate means of implementing
the judgment. The Grand Chamber in Hirst (No.2) did not
state that the only permissible means of restricting the rights
afforded by Article 3, Protocol 1 was by express judicial
decision in every case, but stated that it was "primarily
for the state concerned to choose, subject to supervision by the
Committee of Ministers, the means to be used in its domestic legal
order in order to discharge its obligation under Article 46 of
the Convention." (para 83 of the judgment). As already
noted, many states operate a system of partial disenfranchisement
which does not depend upon the decision of sentencers in each
individual case.
That said, as you rightly state, Lord Bach indicated
in the debate on Lord Ramsbotham's amendment to the Coroners and
Justice Bill on 15 July 2009 that the Government is
not entirely opposed to giving sentencers some role in the decision;
indeed this is expressly provided for in one of the four options
which is currently out to consultation. However, as Lord Bach
also said, "this approach needs to be considered very carefully".
In relation to the additional burdens posed
by any options which require the judicial sentencer to take decisions
to restore or withdraw voting rights from offenders at the point
of handing down a sentence, the Government does consider that
such an option would impose additional burdens both on the Court
and the UK penal institutions in which offenders are detained.
In the case of the courts, it is clear that
a requirement to make a judgment on enfranchisement at the point
of sentence which takes account of the individual circumstances
of the offender will impose an additional burden on the sentencing
court. The Government is mindful of the need not to underestimate
the impact on the courts of any new requirements.
In relation to the additional burden that such
an option could place on penal institutions, an approach to enfranchisement
based entirely on judicial discretion would need to be carefully
designed in order to minimise the administrative burden on the
prison establishment. In order to facilitate registration and
voting, prison officers will need to undertake some form of verification
of applications to register to vote. In the event that enfranchisement
is determined by the sentencing judge, there will need to be a
mechanism to enable the prison authorities to check eligibility,
and this would need to be designed to minimise the burden on those
institutions.
Nonetheless, despite the potential for such
additional burdens, the Government is not entirely opposed to
the possibility of giving sentencers some role in the enfranchisement
of prisoners, and, as stated above, one of the options set out
in the consultation paper expressly provides for this.
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.
You ask about the Government's view that a remedial
Order under section 10 of the Human Rights Act would not
be appropriate as the means for legislating for the implementation
of the response to the Hirst judgment. The Grand Chamber
ruling in Hirst (No 2) affirmed:
"As to the weight to be attached to the
position adopted by the legislature and judiciary in the United
Kingdom, there was no 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.
It could not be said that there was any substantive debate by…the
legislature on the continued justification…for maintaining
such a general restriction on the right of prisoners to vote."
The Government therefore considers it inappropriate
for a remedial order—which is a summary procedure as compared
to the usual process for enacting primary legislation—to
be the means by which prisoner enfranchisement is enacted. The
Government considers that in the special circumstances of this
case, concerning an issue as fundamental as extending the franchise,
Parliament should have the opportunity to debate and, if it considers
necessary, amend any legislation implementing the judgment.
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.
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.
The Government has previously provided the Joint
Committee with its most recent update to the Committee of Ministers,
which was provided to the Committee of Ministers in April 2009 for
the meeting of 2-5 June 2009. This is attached (Annex A).
However, a further update will be provided in advance of the Committee
of Ministers' meeting in December, when the case is next due to
be considered. We will, of course, provide the Joint Committee
with a copy of any information submitted.
We have noted the Committee of Minsters' comments
and the decision adopted in relation to this case. However, given
that the consultation on this topic has only very recently concluded,
we are not in a position to provide additional information at
this time.
However, even if the concern of the ECtHR expressed
in Hirst (No 2) were not remedied by the next general election,
this would not in the Government's view call into question the
legality of the elections themselves.
The Government recognises that the implementation
of this judgment is taking some time. However, the issues around
prisoner voting are complex and require full consultation and
consideration. The Government is actively working to resolve the
issues, and the results of the second stage consultation will
inform this work. As this second consultation has now concluded,
the Government will consider the next steps towards implementing
the judgment in legislation.
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.
The Government faces a judicial review by Peter
Chester, who seeks a declaration of incompatibility in respect
of section 3 of the Representation of the People Act 1983 and
a declaration that he is entitled to vote in European elections.
Permission has been granted and the case is listed in the Administrative
Court on 22 October 2009. There are a number of cases in Scotland
which although technically pending were sisted (stayed) earlier
this year.
We are aware of three further cases at the Court
of Human Rights regarding prisoners' voting rights in Scotland
and Northern Ireland. They are Application Numbers 8195/08, 60041/08 and
60054/08. The cases raise whether there has been a breach of Article
3, Protocol 1 in relation to various elections, whether the
Northern Ireland Assembly is a "legislature" for the
purposes of that Article, and whether the Applicants have had
an effective domestic remedy in accordance with Article 13 of
the Convention. These cases have only been notified to the Government
recently, and the Government has not yet provided its observations.
I hope that you find this reply helpful.
8 October 2009
39 As stated in answer to the first question, two further
responses were received in favour of full enfranchisement, bringing
the total to 43, or 48%. Back
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