Prison Votes and the Constitutional Crisis in the United Kingdom

JURIST Guest Columnist Richard Edwards of the University of the West of England Bristol Law School says that the United Kingdom faces a constitutional crisis over the disenfranchisement of prisoners, which raises further questions about its relationship with Europe and the Human Rights Act....
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Constitutional crises often arise from the most unlikely of cases. Remarkably the United Kingdom (UK) finds itself in a growing constitutional crisis over the disenfranchisement of prisoners. This unlikely issue has become a focal point for a set of broader constitutional questions from the rule of law through to the UK's relationship with Europe in a constitutional and political sense, and the effectiveness of the Human Rights Act.

Prisoner Disenfranchisement
English law has long recognised that human rights do not end at the prison gate. A prisoner continues to enjoy such rights that are not taken away expressly or by necessary implication. However, one of the expressly denied rights is the right to vote (Section 3, Representation of the People Act 1983). Generally, prisoners suffer what is known as a civil death, irrespective of their sentence or crimes. This penalty has long been a feature of English law, detailed in Blackstone, it can in fact be traced all the way back to antiquity.

The British Human Rights Act
In 2003 the disenfranchisement of prisoners was challenged under the Human Rights Act 1998 (HRA). The HRA gives domestic legal effect to the European Convention on Human Rights (ECHR). But HRA did so in a limited way. The HRA does not incorporate the ECHR, but instead places public bodies under a new duty to act compatibility with Convention rights. And although the HRA creates a new modified form of judicial review of legislation, the Act went to almost comical extremes to ensure that Parliament remained sovereign. Indeed, the powers of the courts under the HRA are so weak that where legislation is found to be incompatible with the ECHR they may only issue a non-binding form of declaratory relief - the declaration of incompatibility - that is itself deficient in the terms of the Convention it seeks to protect. In short, the HRA is a weak bill of rights that crucially lacks an effective judicial remedy in the face of incompatible legislation. Where a law is incompatible only Parliament or exceptionally the executive may remedy it.

The Domestic Constitutional Challenge to Prisoner Disenfranchisement
In Hirst v. HM Attorney General [2001] EWHC Admin 239 the disenfranchisement of prisoners was challenged under the HRA. It was unsuccessfully contended that the disenfranchisement was incompatible with Article 3 of Protocol 1 ECHR. The High Court ruled that 'Parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed.' (para 40) In his judgment Kennedy LJ observed that 'in deference to the legislature courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation after careful evaluation and against a background of increasing public concern about crime.' (para 20). Whether this was the case was debatable as the original law enacted in 1870 had only been spasmodically and cursorily reviewed since. An application for permission to appeal to the Court of Appeal was dismissed with Simon Brown LJ concluding the case was 'jurisprudentially ... doomed.' ([2001] EWCA Civ 927, para 7).

Popular Opinion and Bills of Rights
Hirst's cause may not have met with popular acclaim and support. But such cases concern just the sort of issue that a bill of rights is intended to deal with. The purpose of a Bill of rights is, as Jackson J observed, "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts - one's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (West Virginia State Bord of Education v. Barnette 319 U.S. 624, 638 (1943)) Moreover, when interpreting and applying constitutional laws it is not the business of the judicial branch to ascertain and further the vagaries of public opinion. (Reyes v. The Queen [2001] UKPC 64, para 20 Lord Bingham) Yet notwithstanding the view that that the HRA "fulfils the function of a Bill of Rights in our legal system" (McCartan Turkington Breen v. Times Newspapers [2000] 3 WLR 1670, 1686 Lord Steyn) the English courts failed to rise to the occasion by deferring unjustifiably to Parliament.

The European Court of Human Rights
Having exhausted their legal remedies in the UK, the applicants then petitioned the European Court of Human Rights in Strasbourg (European Court). Since 1966 British citizens have been able to petition the European Court, but only in cases where they have exhausted their domestic remedies.
The European Court exercises a subsidiary jurisdiction. The European Court is not part of the United Kingdom's court structure. Its decisions although highly persuasive, do not bind British courts. Under the ECHR the primary responsibility for guaranteeing rights and freedoms rests with the contracting states. How states so this is a matter for them, though most have constitutional bills of rights that mirror the guarantees of the ECHR. The remedies that the European Court grants are limited too. It may grant declarations and if it thinks appropriate just satisfaction (damages). Of course as a matter of international law the contracting states agree to remedy the deficiencies in their legal order usually through a change in the law or an adjustment to executive procedures. The Committee of Ministers, composed of senior diplomats, oversees the execution of the European Court's judgments. However, the Committee's tools lack teeth.

The European Court was intended by its framers to act as a human rights watchdog, barking only when European states allowed the protection of human rights to drop below a minimum level. It was hoped that not only would the ECHR act as a bulwark against political extremism, but that it would also help sustain a genuine European respect for human rights, the rule of law and democracy. And in this it has been remarkably successful.

The International Challenge to Prisoner Disenfranchisement
In Hirst v. UK (No.2) (2006) 42 EHHR 41 the Grand Chamber of the European Court considered, as the English courts had done before, whether the blanket disenfranchisement of prisoners was compatible with the Article 3 of Protocol 1 of the ECHR. The European Court held that is was not. The total ban was disproportionate. Had the 1983 Act disenfranchised only certain classes of votes, such as those guilty of electoral fraud or of the most heinous crimes in the criminal code then it would have in all likelihood been held compatible. But the law did not. Of course, there is, in truth, nothing radical or revolutionary in the decision of the European Court. The European Court was, on one level, simply insisting that the punishment fits the crime. Specifically the European Court held that that Article 3 of Protocol 1 includes a guarantee of individual rights, namely the right to vote and to stand for election. (para 57) In the European Court's opinion the universal suffrage is a basic constituent principle of an effective political democracy governed by the rule of law. (para 58-59). Thus the franchise is not a matter of privilege but a fundamental right.

Nonetheless, the state may impose proportionate restrictions on the right in the pursuit of the public good (para 60). In doing so states have an area of discretionary judgment, within which they have more room for a range of policy decisions than elsewhere. (para 61) For instance, the European Court has upheld restrictions in cases where national law has imposed a minimum age of eligibility or where states have imposed residence requirements. With reference to prisoners the European Court concluded, as it has before, that such people continue to enjoy their Convention rights notwithstanding their incarceration. (para 69) No one simply forfeits his or her Convention rights simply by virtue of imprisonment. And unlike the English High Court, which was happy to defer to the will of the people expressed through Parliament, the European Court was emphatic in its dismissal of public opinion as relevant in this context: "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." (para 70) The Court then went on to conclude that disenfranchisement is not a measure that the state should undertake lightly save in cases where this severe penalty is connected with a legitimate aim and is executed in a proportionate manner. With respect to the restrictions in the 1983 Act the European Court accepted that the restriction pursued a legitimate aim in ensuring that voters were civically responsible individuals who had respect for the rule of law. However, the blanket restriction applying to prisoners was by definition disproportionate.

Furthermore, the argument of the UK government that the ban fell within the margin of appreciation received short shrift: "Such a general, automatic and indiscriminate restriction on a vitally important convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be" (para. 83) Before disposing of the application the European Court was also critical of the way in which the disenfranchisement had been imposed: "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." (Para. 79) As we shall see it was this point that was to later provide the inspiration for the backbench debate on prisoners voting.

The Consequences of Hirst
Two consequences followed as a result of the Grand Chamber's judgment in Hirst. First, the UK government came under an obligation under international law to implement the judgment (Article 46 ECHR). Not surprisingly in the intervening years the then Labour administration showed little enthusiasm to do so. In fact by the time that Labour left office in 2010 it had simply carried out a protracted two-stage review of the issue (one consultation in 2006 and the other in 2009). Remarkably as part of this review process the government canvassed the option of retaining the blanket ban, the very policy found wanting in Strasbourg. However, five years after the Grand Chamber's final ruling the incompatible law remains in identical form on the statue book. By the end of the consultation and review process the Committee of Ministers was evidently loosing patience with the UK authorities, adopting an interim resolution which expressed its serious concern that the forthcoming general election (2010) would be conducted under the same unaltered laws that the European Court had found wanting in Hirst (Interim Resolution CM/ResDH(2009)1601). This concern and disappointment was subsequently reiterated as the UK failed to take any steps to implement the judgment. (See Decision 18, 1086th DH meeting - 3 June 2010. Decision 6, 1092nd DH meeting - 15 September 2010).

Second, the European Court affirmed its decision in Hirst in a series of cases: Frodl v. Austria [2010] ECHR 20201/04, Scoppola (No 3) v Italy [2011] ECHR 126/05 and Greens v. UK [2010] ECHR 60041/08. As the European court noted in Frodl any penal sentence that disenfranchised a prisoner had to taken as a matter of discretion by the trial judge on the basis of the particular circumstances of the offence. (paras 34-35) By 2011 the principles set forth in Hirst had come to represent the clear and consistent doctrine of the European Court. Domestically, the judgment in Hirst has been considered in a number of cases (E.g. Smith v. Scott 2007 SLT 137, Chester v. Secretary of State for Justice [2009] EWHC 2923 (Admin)). But British Courts, while now declaring the section incompatible, have quite correctly concluded that it is for Parliament to change the law.

The UK finds itself in something of a bind. On the one hand the Council of Europe is pressing for the UK to implement the judgment of the European Court. And on the other, members of Parliament show little appetite to do so. On 10 February 2011 the House of Commons debated prisoner disenfranchisement, ostensibly to show to the European Court that Parliament had fully considered the issue. However, the debate showed not only the naked hostility of many members to European institutions but also an depressing degree of ignorance that many members possess on elemental constitutional matters. Despite the pleas of the Attorney General that MPs focus on the problem of how to adjust the voting rights of prisoners, members instead chose to use the debate as an opportunity question the legitimacy of the European Court - shamefully dubbed a 'kangaroo court' by one MP - and in some cases to argue for withdrawal from the Council of Europe. Speaker after speaker argued that it was for Parliament to make the law, and not for unelected judges ignoring the reality that this is in fact their job under both the ECHR and the HRA. Many MPs were happy to argue that prisoners were in fact a class of second-class citizens who consequently enjoy fewer human rights.

However, the issue that particularly vexed most MPs during the debate was the interpretative doctrine employed by the European Court that treats the Convention as a "living instrument". MPs viewed this doctrine as little more than a conceptual ramp through which the court is illegitimately extending its jurisdiction and authority as little more than a naked act of judicial imperium. Of course anyone with familiar with human rights law would know what arrant nonsense this is. To begin with the idea is not a new one. And it did not originate in the European Court. In English law it finds its most eloquent exposition in the advice of the Privy Council in Edwards v. The Attorney General of Canada [1929] UKPC 86. At issue in Edwards was the question of whether 'persons' who might be summoned by the Governor-General to the Senate included women. Before Edwards' Case the Canadian constitution had been interpreted as applying to men only. Lord Sankey LC famously disagreed and interpreted "persons" as including women: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits ... The object of the Act was to grant a Constitution to Canada ... Like all written constitutions it has been subject to development through usage and convention ... Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation." The interpretative process employed by the European Court is identical. The provisions of the ECHR are to be interpreted generously, not only in light of contemporary society but also with reference in the penal context to developments and commonly accepted standards in the other contracting states of the Council of Europe.

Relevant Overseas Experience
One fortunate legacy of the United Kingdom's colonial past is the proliferation of the Westminster constitutions throughout the Commonwealth. Just as the US states are laboratories of democracy, so too is this family of nations. And yet at no point did the House of Commons consider the experiences of Canada, Israel, South Africa or Australia. In Australia, for example, the Commonwealth Electoral Act 1918 (Cth) was amended in 2006 by the insertion of Section 93(8AA) which prohibited all prisoners from voting in any Senate or House of Representatives election. This ban was challenged before the High court, which in Roach v Electoral Commissioner [2007] HCA 43 declared the ban to be unconstitutional because it was disproportionate. Within the Council of Europe Ireland whose electoral law was effectively the same as British law being a statute that dated from before 1922 and independence expunged the self same provisions from the statute book in 2006 (Electoral (Amendment) Act 2006). Similarly, Cyprus passed the Electoral Law Amendment in 2006 to give effect to the Hirst judgment. Yet in the home of the Mother of Parliaments legislators are now so parochial that they are either unwilling or unable to exam these solutions and experiences.

Consequences of a UK Default
The subsidiary nature of the ECHR means that it falls to the state to comply with the judgments of the Court. Under the ECHR contracting states agree to fully and promptly to implement the judgments of the court. However, there are no effective sanctions to deal with a state that refuses resolutely to abide by the judgment of the Court in a particular case. Under the provisions of the newly implemented Protocol 14 the Committee of Ministers can refer a defaulting state back to the Court, though this needs a majority of two thirds to do so. And other than further and embarrassing censure by the Court, the only other sanctions are a suspension of voting rights in the Committee of Ministers and ultimately expulsion from the Council of Europe itself (Articles 7-8, Treaty of London). Both are unlikely. But in the febrile atmosphere of the debate some politicians have advocated that the UK should use the issue of prisoner voting a pretext for withdrawing from the ECHR and the Council of Europe.

This, however, is dangerous territory. The government is bound by the law. This includes, of course, judgments of international courts whose jurisdiction it has voluntarily accepted. In a country governed by the rule of law the other branches of government must be seen to accept and abide by decisions of the courts. A government should not brazenly defy the European Court as the UK is clearly tempted to do. This unprecedented action would not only undermine the moral and political standing of the UK, it would also undoubtedly give succour to other European nations whose human rights record is shameful. Not only do politicians have a special responsibility by virtue of their prominent position in society, they should know that their example encourages others to comply with the law. For when politicians are seen to question the law and then to defy it, a wider breakdown in justice and order at all levels will inevitably follow.

Possible Solutions?
Clearly some sort of sensible solution will need to be found. The UK must change the law in order to comply with its international obligations, and to be seen to be complying with the international rule of law. To that end a draft Parliamentary bill could be prepared with a carefully tailored set of provisions that reflects the jurisprudence of the European Court. The Bill might extend the franchise to some prisoners while continuing the ban in other cases. For instance, people committed of offences under electoral laws could be disenfranchised during their incarceration, or those who commit fraud or corruption while in public office. Similarly, individuals sentenced to whole life tariffs might loose the vote on the basis there is little possibility that they will be released back into society. As a residual safeguard the trial judge could enjoy a discretion to remove the penalty where it is in the interests of justice. And so on.
Given the uncertainty over just what provisions would pass muster under the ECHR further judicial elucidation would be very useful. Thus the draft bill could be referred to the Judicial Committee of the Privy Council (JCPC - in effect the Supreme Court) under s.4 of the Judicial Committee Act 1833 for an advisory opinion. Strictly speaking although the opinion of the JCPC would be simply advisor, but it would be difficult for Parliament to ignore it. Moreover, because the issue would be fully argued and tested before enactment the resulting bill would be largely immune from challenge in the domestic courts. And, of course, if the issue comes before the European Court again, that court would have the benefit of the opinion, in effect, of the UK Supreme Court.

Equally, it is open to the UK government to propose that the text of the Convention is amended so that states would be explicitly able to impose restrictions. Since the original Convention was concluded its provisions have been supplemented and amended on numerous occasions through additional Protocols. It is open to the UK government to seek to change the text of the Convention so that the right in Article 1 of Protocol 1 could be qualified by national legislatures. Naturally this of course means delicate and protracted negotiations with the other parties to the Convention, and there is no guarantee of success. But on the issue of prisoner disenfranchisement this is taking the proverbial sledgehammer to crack a nut.

Richard Edwards teaches European human rights and constitutional law at the Bristol Law School.

Suggested citation: Richard Edwards, Prison Votes and the Constitutional Crisis in the United Kingdom, JURIST - Forum, April 10, 2011,http://jurist.org/forum/2011/04/prison-votes-in-the-united-kingdom.php.

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