4. Letter from the Chair of the Committee, to
Rt Hon Nick Clegg MP, Deputy Prime Minister, 13 October 2010
The Joint Committee on Human Rights is considering
the compatibility of the Parliamentary Voting System and Constituencies
Bill with the requirements of human rights law.
The human rights issue which the Committee is considering
is whether the parliamentary franchise, which is used to define
the right to vote in the referendum, will have been amended by
the time of the referendum so as to give effect to the decision
of the Grand Chamber of the European Court of Human Rights in
Hirst v UK, that the blanket disqualification of prisoners from
voting is in breach of the right to participate in free and fair
elections in Article 3 Protocol 1 ECHR.
The Bill provides that a person is entitled to vote
in the referendum if, on the date of the referendum, he or she
would be entitled to vote in a parliamentary election.[89]
The effect of defining entitlement to vote in the referendum
by reference to the parliamentary franchise is that prisoners
who are currently disqualified from voting in parliamentary elections
by s. 3 of the Representation of the People Act 1983 will also
be disqualified from voting in the referendum.
The blanket ban on prisoner voting in s. 3 of the
1983 Act was held to be incompatible with the right to participate
in free and fair elections in Article 3 Protocol 1 ECHR by the
Grand Chamber of the European Court of Human Rights in October
2005.[90] It has also
been declared to be incompatible with Article 3 Protocol 1 by
the Court of Session in Scotland.[91]
On 15 September 2010 the Committee of Ministers of the Council
of Europe adopted an interim resolution regretting the UK's failure
to implement the judgment and calling on the UK to prioritise
implementation of the judgment without any further delay.[92]
In the Government's view there is no incompatibility
because the provision defining the franchise for the referendum
does not engage Article 3 of Protocol 1. The basis for this view
is that, according to the case-law of the European Court of Human
Rights, referenda do not fall within the scope of Article 3 Protocol
1 because they are not "elections concerning the choice of
the legislature". Article 3 Protocol 1 therefore does not
guarantee the right to participate in a referendum. The Committee
accepts, as a matter of ECHR case-law, that the definition of
the franchise in a referendum does not engage Article 3 Protocol
1, for the reasons given in the Explanatory Notes: the right applies
only to the election of the legislature.
However, the Committee is concerned about the Government,
in effect, inviting Parliament to legislate by reference to a
statutory provision which was found by the Grand Chamber of the
European Court of Human Rights to be incompatible with the European
Convention more than five years ago, which has also been declared
incompatible by a UK court, and which was recently the subject
of an interim resolution by the Committee of Ministers of the
Council of Europe, without having introduced any measure to remedy
that incompatibility in the meantime, and in the absence of any
attempt to justify the disqualification of prisoners from entitlement
to vote in the referendum. The Bill defines the right to vote
in the referendum by reference to the parliamentary franchise
at a future date, namely the date of that referendum (5 May 2011).
The Committee would like to know whether the parliamentary franchise
at that date will have been amended to remove the incompatibility
identified by the Grand Chamber in Hirst.
The Committee would be grateful if you could provide
it with further information as to when the incompatibility identified
by the Grand Chamber in Hirst v UK is going to be remedied.
I would be grateful if you could reply by 27 October
2010 and if an electronic copy of your reply, in Word, could be
emailed to jchr@parliament.uk.
13 October 2010
89 Clause 2(1)(a). Back
90
Hirst v UK, App No. 74025/01 (6 October 2005). Back
91
William Smith v Electoral Registration Officer [2007]
CSIH XA 33/04 (24 January 2007). Back
92
CM/ResDH(2009)160 (Annex to this Note). Back
| 
