Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill

Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents

3 The history of prisoner voting and the European Convention on Human Rights

The drafting of the First Protocol

26. A significant part of the evidence received by the Committee related to the intention of the drafters of Article 3, Protocol 1 of the European Convention on Human Rights. The First Protocol, which was signed in 1952, provided for three additional rights: the right to property, the right to education and the right to free and fair elections to the legislature. The AIRE Centre told us that the United Kingdom negotiators had excluded these three rights from the original Convention "primarily owing to difficulties it foresaw in the status of some of those rights in the British colonies"[25]—though it is clear that in the case of Article 3 other factors also came into play.

27. The wording of Article 3, Protocol 1 is as follows:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

28. The Article does not state, in terms, that there is a "right to vote", and some witnesses, including Jonathan Fisher QC, Martin Howe QC, Anthony Speaight QC, and Dominic Raab MP, David Davis MP and Jack Straw MP in their joint submission, told us that the European Court of Human Rights, in interpreting the Article as providing a right to vote, had ignored the intention of its original drafters. Mr Raab, in a paper published in 2011, in which he analysed the Convention's Travaux Préparatoires (the official records of the negotiation of the Convention and its Protocols), drew the following conclusion:

29. Other witnesses, including the AIRE Centre and its founder, Nuala Mole, and Lord Lester of Herne Hill QC, presented a different interpretation of the Travaux Préparatoires. Lord Lester, for example, told us that "there is nothing there to indicate any intention by the framers to exclude voting rights."[27]

30. There is agreement on both sides of this debate that UK negotiators successfully objected to inclusion of the term "universal suffrage" during the drafting of this provision; it is also clear that in so doing the negotiators did not directly refer to prisoners voting. The UK's principal negotiator, Sir Oscar Dowson, noted that in "no State is the right to vote enjoyed even by citizens without qualifications",[28] but the specific concerns he raised related to the potential impact of the term "universal suffrage" within the colonies, its impact upon the legitimacy of the unelected House of Lords, and its compatibility with the first-past-the-post voting system used in UK general elections.[29]

The doctrine of the "living instrument"

31. A second issue that has been raised by critics of the judgment in Hirst is that the ECtHR has ignored the basis of its jurisdiction by engaging in an unwarranted extension of the rights contained in the Convention under the "living instrument" doctrine. This doctrine was established by the Court in a 1978 case, Tyrer v United Kingdom, which related to the use of judicial corporal punishment ("birching") in the Isle of Man. The plaintiff alleged that the practice of birching was contrary to Article 3 of the Convention, which states that "No-one shall be subjected to torture or to inhuman or degrading treatment or punishment". While there was no reason to believe that the drafters of Article 3 were in any way concerned with birching, the judgment stated that:

The Court accordingly concluded that birching was a "degrading … punishment", and therefore contrary to Article 8.

32. Since the 1970s the "living instrument" doctrine has been held by the Court to mean that the Convention should not be set in stone (and read in accordance with prevailing standards when its core provisions were accepted in the 1950s), but that it should keep pace with emerging "common" European standards.[31]

The "right to vote" under Article 3, Protocol 1

33. Article 3, Protocol 1 is not phrased in terms of a right to vote, but since 1987 the Court has taken the view that when this provision speaks of the responsibility of signatory states to "ensure the free expression of the opinion of the people in the choice of the legislature", it is the Court's duty to clarify the limits of these obligations in terms of individual rights.[32] This development seemed to attract little controversy at the time, possibly because the Court placed such emphasis in its judgment on the wide "margin of appreciation" enjoyed by states in interpreting this right.

34. The ECtHR has used the term "margin of appreciation" in hundreds of rulings and decisions to take account of the room for manoeuvre that national authorities may be allowed in fulfilling some of their main obligations under the Convention. The term was defined in the case of Handyside v United Kingdom, where the Court explained that "the machinery of protection established by the Convention is subsidiary to the national system safeguarding human rights." The Court observed that although national authorities enjoyed a "margin of appreciation", this went "hand in hand with … European supervision."[33]

35. Certain Articles of the Convention give examples of specific matters that a state may take into account when placing restrictions on a Convention right: for example Article 10(2) provides that the right to freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society." Qualifications of this sort have also been extended, by analogy, to other Articles which are not restricted explicitly by the terms of the Convention—the Court then inevitably goes on to consider what it describes at the "proportionality" of the measure (see chapter 7). This presents a difficulty, in that the "margin of appreciation" as a general concept, rather than as an explicit qualification of specific rights, is not strictly defined, with the result that its application is at the sole discretion of the Court.

36. In its developing Article 3, Protocol 1 jurisprudence, the ECtHR has not imposed a requirement for universal suffrage, recognising that the right to vote is not absolute. Instead it has proceeded on the basis that "in the twenty-first century, the presumption in a democratic state must be in favour of inclusion."[34] But this approach, while acknowledging limitations on the right to vote, demonstrates that it is open to the Court to develop rights over time—a right that was not stated in terms in the twentieth century has become, in the twenty-first, a clear "presumption". The Court has acknowledged that this presumption can be overridden in the case of reasoned and proportionate exceptions,[35] but the margin of appreciation allowed to states in applying such exceptions has not been defined, and the case-law is inconsistent.[36]

37. The Court's jurisprudence on prisoner voting is explored in more detail below: the fundamental issue for Parliament, and potentially for other national parliaments, is that the "living instrument" doctrine not only underpins the development of Article 3, Protocol 1 jurisprudence since the 1980s, but will presumably underpin future jurisprudence, with uncertain and far-reaching consequences. In simple terms, there is a risk that the goal-posts will continue to move, as the Court's jurisprudence moves further from what was agreed by the signatory states in 1950.

Hirst v United Kingdom (No.2)

38. The United Kingdom's current difficulties over the issue of prisoner voting can be traced back to the decision of the ECtHR in the case of Hirst v United Kingdom (No. 2).[37] The background to the case is as follows: Mr Hirst, who had killed his landlady, pleaded guilty in 1980 to manslaughter on the grounds of diminished responsibility, and was sentenced to life imprisonment. While in prison, he brought legal proceedings in the domestic courts, seeking a declaration that section 3 of the Representation of the People Act 1983 was incompatible with Article 3, Protocol 1 to the European Convention on Human Rights.

39. Mr Hirst's application was heard by the Divisional Court in 2001.[38] It was refused and he was also refused permission to appeal. Lord Justice Kennedy concluded, among other things, that:

40. Mr Hirst then brought an application before the European Court of Human Rights. His case was allocated to the Fourth Section of the Court, and following a hearing on 16 December 2003, the Court held unanimously that there had been a violation of Article 3, Protocol 1. On 23 June 2004 the Government made a request for the case to be referred to the Grand Chamber of the European Court of Human Rights. In a judgment delivered on 6 October 2005, the Grand Chamber held by 12 votes to 5 that there had been a violation of Article 3, Protocol 1 to the Convention.

41. The Court ruled, inter alia, that the right to vote was "not a privilege." It concluded:

"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."

It went on to add that:

42. The Court acknowledged that the disenfranchisement of convicted prisoners "may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law." But while acknowledging that these might be "legitimate aims", the Court determined that the means whereby they were pursued, what it described, though without defining the term, as a "blanket ban"[41] on convicted prisoners voting, was a general, automatic and indiscriminate restriction on a vitally important Convention right, which fell "outside any acceptable margin of appreciation." It stated that although the Representation of the People Act 2000 had granted the vote to remand prisoners, it remained a "blunt instrument." Moreover, it said that the prohibition applied to prisoners:

Irrespective of the length of their sentence;
Irrespective of the gravity of their offence;
Irrespective of their individual circumstances.

43. The Court considered the weight to be attached to the position adopted by the legislature in the United Kingdom and stated that "there is no evidence that Parliament has 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 added: "it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote." It dismissed that Government's argument that that the ban was proportionate in that it was restricted to those "convicted of crimes serious enough to warrant a custodial sentence."[42]

44. The Court considered an application for £5,000 in damages which was made by Mr Hirst for "suffering and distress caused by the violation."[43] The UK Government contended that a finding of a violation should in itself constitute just satisfaction for the applicant. If, alternatively, the Court were to make an award, it considered the amount should not be more than £1,000.

45. The Court concluded that "it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case."[44] It refused to award any monetary compensation. Nor did the Court give any significant guidance as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention.

46. Five members of the panel (including the Court's President and a future President of the Court) dissented. They noted that "unless restrictions impair the very essence of the right to vote or are arbitrary, national legislation on voting rights should be declared incompatible with Article 3 only if weighty reasons justify such a finding."[45] The dissenters also noted that the Court should be very careful not to assume legislative functions and that there was little consensus in Europe about whether or not prisoners should have the vote. They took note of the multi-party Speaker's Conference on Electoral Law (mentioned in Chapter 2), indicating that it had unanimously recommended that convicted persons should not be entitled to vote. They also recognised that the Representation of the People Act 1983 had been amended in 2000 to enable remand prisoners and un-convicted mental patients to vote.

47. Following the decision in Hirst, the most notable case in the domestic courts (until 2013) was that of Smith v Scott,[46] a decision of the Scottish Registration Appeal Court. That court recognised the incompatibility of section 3 of the Representation of the People Act with Article 3, Protocol 1 of the Convention and made a "declaration of incompatibility" under the Human Rights Act 1998.[47] This would have authorised the Government to use the "remedial order provisions" contained in section 10 of the 1998 Act, under which the Secretary of State may by order (subject to affirmative procedure in both Houses) amend any provisions in primary legislation found to be incompatible with the Convention. The Government declined to use these powers. The domestic courts refused to make any further declarations in a series of subsequent cases, and the issue eventually reached the UK Supreme Court in the summer of 2013 (discussed further below).

Subsequent developments in Strasbourg

48. Further judgments by the European Court of Human Rights have involved not only the United Kingdom but a number of other countries maintaining complete or partial bans on prisoner voting. Unfortunately some of these have muddied the waters, making it less clear what changes to the law were required to achieve compliance with the Convention.

49. In the case of Frodl v Austria, decided by the First Section of the Court, but never substantively considered by the Grand Chamber, the Court appeared to narrow the margin of appreciation open to States almost to vanishing point, finding that the Austrian law that all those convicted of crimes involving intent and sentenced to more than one year in prison should lose the right to vote was also in breach of Article 3, Protocol 1. The Court concluded that:

50. The decision in Frodl became final in October 2010. As the UK Government's submission to this Committee observed, the judgment, though directly binding only on Austria, was significant to the UK since it formed part of the wider body of Strasbourg case law.[49]

51. The case of Greens and M.T. v United Kingdom,[50] brought by two prisoners who, under the provisions of the Representation of the People Act 1983, had been ineligible to vote in either the 2009 European parliamentary elections or the 2010 general election, was also heard in 2010. The Court again held that there had been a violation of Article 3, Protocol 1 to the Convention, as the United Kingdom had failed to implement the Grand Chamber's decision in Hirst. In those circumstances, and having received in excess of 2,000 similar applications, the Court decided to adopt its pilot judgment procedure.[51] The Court gave the United Kingdom a six-month deadline to bring forward legislative proposals in this area. This deadline originally expired in October 2011. Following the judgment in a further case, Scoppola v Italy (No.3),[52] in which the United Kingdom intervened, the deadline for bringing forward legislative proposals was extended to November 2012. Consideration of the cases outstanding against the UK was adjourned to 30 September 2013.

52. In Scoppola v Italy the Grand Chamber of the ECtHR again considered prisoner voting. The rules governing disenfranchisement in Italy are, in outline, that those sentenced to five or more years in prison are disenfranchised for life (but with the possibility of applying for re-enfranchisement following release), and that those given sentences of between three and five years are disenfranchised for five years. The UK Government took the opportunity to intervene, but in the event the court confirmed the judgment in the case of Hirst, that a general and automatic disenfranchisement of all serving prisoners was incompatible with the Convention. At the same time, the Court found in favour of the Italian approach, while accepting that Council of Europe States should have a wide discretion as to how they regulate prisoner voting, both as regards the type of offence that should result in the loss of the vote, and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from the application of a general law.

53. Thus it can be seen that the Court in Scoppola rowed back from the position adopted in Frodl. In particular, the Grand Chamber indicated that it did not agree with the decision of the lower chamber in Frodl that the decision on disenfranchisement had to be left to a judge.[53] It also made clear that the rights enshrined in Article 3, Protocol 1 were not absolute; that there was room for "implied limitations"; and, that "the Contracting States must be afforded a margin of appreciation in this sphere."[54] The Grand Chamber concluded that the Italian law was not a disproportionate interference with the applicant's Convention rights. In reaching that decision, it had regard to the fact that:

54. The fact that the Italian system allows convicted persons who have been permanently deprived of the right to vote to recover that right was also a significant factor in the Court's decision.[56]

55. The decision in Scoppola marked the end of the road in the United Kingdom's attempts to make the Grand Chamber reconsider its principal conclusion on the issue of prisoner voting, and it is now clear that the ECtHR will not accept what it considers to be a "blanket ban."[57] It said that:

56. In two recent cases involving Russia and Turkey the Court has confirmed that general prohibitions on prisoner voting are contrary to Article 3, Protocol 1.[59] These cases, while not affecting the UK directly, confirm the growing body of case-law on this issue.

57. A further case, which is directly applicable to the UK, is the 2013 decision in McLean and Cole v United Kingdom, which addressed the scope of the right in question in terms of the elections to which it applied. The Court noted that the wording of Article 3, Protocol 1 "is limited to elections concerning the choice of legislature and does not apply to referendums." The Court also confirmed that the UK's Convention obligations did not extend to local government elections, as local authorities are "the repositories of powers which are essentially of an administrative nature."[60]

58. Finally, in October 2013 the Committee received evidence that the cases outstanding against the UK (now referred to as Firth and others v United Kingdom) had been reactivated and would be heard by the Court in due course. The Attorney General told us that the United Kingdom government was "not clear" why the Court had reopened the "clone cases" in view of the publication of the draft Bill and this Committee's consideration of it. He said:

Conclusions of the Committee

59. The European Court of Human Rights has not provided the United Kingdom with specific guidance as to what is considered necessary for compliance with Article 3, Protocol 1 of the European Convention on Human Rights. Having identified that the current prohibition on convicted prisoners voting breaches the right to vote, the Court maintains that it is up to the UK to make use of its margin of appreciation to find a solution that reflects national circumstances, while complying with the fundamental principles set out in the Court's judgments.

60. We note that the Court's approach has developed unpredictably in recent years. We also note the concerns expressed by some witnesses over the "living instrument" doctrine, and the uncertainty implicit in that doctrine.

61. With these provisos, we derive the following conclusions from the Court's recent jurisprudence:

A measure disenfranchising all convicted prisoners in detention is not considered to be acceptable, and any modified prohibition, if it is to satisfy the European Court of Human Rights and avoid being seen as "automatic and indiscriminate", will have to be seen to discriminate between less serious and more serious offences and may be expected to have some regard to individual circumstances.
The Court has partially retreated from the position that appeared to be adopted in Frodl v Austria, that the decision on prisoner disenfranchisement must be taken by a judge; nor does there need to be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement.

62. The unfreezing on October 2013 of 2,354 cases on prisoner voting by the European Court of Human Rights, due to the United Kingdom's failure to implement the decision of the Court in the case of Hirst v United Kingdom (No. 2), means that finding a resolution to this issue has become particularly pressing. We are concerned that, at a time when this Joint Committee is actively considering legislative proposals responding to the ECtHR's judgment, the Court should have seen fit to re-start judicial proceedings.

The approach of the domestic courts

63. As well as taking cases to the ECtHR, prisoners have sought to bring cases before the domestic courts. Following the declaration of incompatibility in Smith v Scott,[62] the UK courts have refused to make any further such declarations.[63] The domestic courts have also refused to interpret the provision in section 3 of the Representation of the People Act 1983 in such a way as to remedy the incompatibility.[64] In 2013 the appeals of R (on the application of Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council were heard by the Supreme Court.

64. The cases both related to prisoners who had been convicted of murder and sentenced to life imprisonment. Before the Supreme Court the Attorney General sought to re-open the question of prisoners' entitlement to vote under the Convention. In addition to arguments raised under the Human Rights Act and the ECHR, the prisoners also sought to rely on European Union law (in particular, in respect of the general prohibition on voting in European Parliamentary and municipal elections).

65. The Supreme Court declined the Attorney General's invitation not to apply the principles in Hirst. It also declined to make any further declaration of incompatibility (as it would serve no purpose to do so) and concluded that the prisoners were not granted any right to vote under European Union law. Lord Mance noted that in response to the Strasbourg Court's deadline for action, a draft Bill had been published and was being considered by this Committee.

66. Although Lord Mance gave the leading judgment, Lord Sumption took the opportunity to provide a helpful and detailed history of objections to prisoner voting. He described the position of the ECtHR as "curious." This was because the Strasbourg Court had accepted that it was "open to a Convention State to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person"; that "the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence"; and, that disenfranchisement may be automatic once a sentence above that threshold has been imposed. But Lord Sumption noted that the Court nonetheless refused to permit the threshold for disenfranchisement to correspond with the threshold for imprisonment. Despite this inconsistency, he saw "no realistic prospect that further dialogue with Strasbourg will produce a change of heart". He also re-stated the fundamental principle underlying UK adherence to the ECHR:

25 Written evidence from the AIRE Centre. The Convention initially extended to the UK's remaining colonies. Back

26 Dominic Raab MP, 'Strasbourg in the Dock: Prisoner voting, human rights & the case for democracy' (2011), p 6 Back

28 Travaux Préparatoires, III, p 182 Back

29 A.W. Brian Simpson, Human Rights and the End of Empire (2001) pp 765-766 Back

30 Tyrer v UK (1978) 2 EHRR 1, paragraph 31 Back

31 See E. Bates, 'British Sovereignty and the European Court of Human Rights' (2012) 128 LQR 382, 397 Back

32 Mathieu-Mohin and Clerfayt v Belgium (1987) 10 EHRR 1 Back

33 Handyside v United Kingdom (1976) 1 EHRR 737, paragraph 49 Back

34 Hirst, paragraph 59 Back

35 Scoppola v Italy (No. 3) (2012) 56 EHRR 5, paragraph 104 Back

36 See below, paragraphs 49-53 Back

37 Part of Mr Hirst's original application, lodged in 2001, was deemed inadmissible by the Fourth Section of the ECtHR on 8 July 2003, with the result that the remaining elements of his application were taken forward under the title "No. 2". Back