It’s no surprise that the Supreme Court has today unanimously dismissed appeals by two prisoners who wanted various remedies under the Human Rights Act and EU law for being denied the vote in Parliamentary, local, Scottish Parliament and European election. These cases were always weak.
Lord Mance gave the leading judgment and all the justices agreed broadly with his reasoning, though Lady Hale, Lord Clarke and Lord Sumption all gave concurring judgments including further or slightly different reasoning on some aspects of the case.
Lord Mance’s conclusions (summarised at para. 4 of the judgment) are first, that although the prison voting ban is incompatible with the right to free elections, a declaration of incompatibility under section 4 of the Human Rights Act has already been made (in Smith v Scott). The court isn’t bound to make a declaration, but simply has a discretion to do so; and there’s no point in making another one now.
As far as EU law is concerned, Lord Mance said, EU law says nothing about Parliamentary or Scottish Parliamentary elections, and gives no individual right to vote in local or European elections. While EU law does guarantee the right to take part in local and EU elections for EU citizens “under the same conditions as nationals”, there is no link to EU law in this case (involving two British prisoners wanting to vote in Britain) such as to engage the anti-discrimination rule. In any event, Lord Mance said, there would have been no appropriate remedy for the prisoners even if EU law had helped them at all.
What’s more interesting than the result of the case is the court’s rejection of the Attorney General Dominic Grieve’s argument (he appeared for the government himself at the hearing) that it should depart from the reasoning of the Grand Chamber of the European Court of Human Rights on prisoners’ votes in Hirst and Scoppola, and in effect say that the European Court is wrong. That was a bold submission, though I think a perfectly reasonable one. But it didn’t succeed. While the Supreme Court said in Horncastle that
There will … be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision …
at para. 25 of the judgment Lord Mance said there were limits to the scope to depart from Strasbourg:
… dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.
in this case, Lord Mance said (para. 34)
Nothing in Scoppola … suggests that the Grand Chamber would revise its view in Hirst (No 2) to the point where it would accept the United Kingdom’s present general ban. There is on this point no prospect of any further meaningful dialogue between United Kingdom Courts and Strasbourg.
All the justices agreed with this approach. Even Lord Sumption, whose quite lengthy concurring judgment contained some criticism of the European Court of Human Rights (para. 135)
the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment.
did not think the court could depart from Strasbourg in these circumstances (para 121):
In the ordinary use of language, to “take into account” a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases.
Clearly he disagrees with the European court’s case law, but (para. 137)
the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the court’s case-law. It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law … There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart. In those circumstances, we would be justified in departing from the case-law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom. I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it.
In paragraph 138 he identified the root of the prisoners’ votes problem as the European court’s disrespect for the margin of appreciation in Hirst (something I think he’s right about) but even so, he saw no scope for the Supreme Court to go behind its rulings:
A wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy. But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation
The Attorney General must be disappointed, though probably not surprised, that he was unable to move the justices further than this. In terms of conservative politics, this judgment strengthens the position of those who say legislation is needed in order to “make our Supreme Court supreme”. Dominic Grieve has not been able to show he can achieve that by legal argument.
Lord Clarke gave a concurring judgment expressing much more sympathy with the European court’s thinking. But more interesting was Lady Hale’s judgment, and its trenchant attack on the sort of abstract rulings these appellants, both of whom are serving life for murder, were asking for. At para. 99 she said
I have no sympathy at all for either of these appellants. I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote … it seems clear from the decision in Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was then a power of review.
She agreed with the dissenting minority in the European court in Hirst, who had said that ruling was itself abstract, since Hirst had been in prison for manslaughter. Rather than auditing UK law in the abstract it ought, she said, to have indicated
in precisely what way Mr Hirst’s rights had been violated by the law in question. It seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act.
This shows that she agrees with Lord Sumption’s clear view, and that of the Attorney General, that the European court in Hirst was always wrong.
For good measure she went on (para. 102) to say this about UK courts’ approach to declarations of incompatibility under section 4 of the Human Rights Act. The wording of section 4, she said,
does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims.
Unmeritorious claims like this one, in other words. What she said, though, could equally well be applied to Hirst or to the recent “whole life order” case of Vinter, Bamber & Moore v UK.
This cases does nothing to relieve the UK’s prison votes dilemma. It shows there is frustration with the European Court of Human Rights on the Supreme Court bench as well as in Parliament. But if anything, it strengthens the hand of those who want legislative change to give the Supreme Court more power to go its own way – or even to force it to do so in some cases.
We cannot rewrite history but what a pity that, instead of Hirst, the test case at Strasbourg against the UK had been one of someone sentenced by the Magistrates’ Court to (say) 4 months imprisonment a few days before a general election and thereby deprived of the right to vote. Surely in such cases the UK’s present position is disproportionate even if, as Lord Sumption commented, the E Court HR has got itself into a ‘curious position.’
The views about declarations of incompatibility relating to the actual case before the court are important. The court should not, as a general rule, get into the position of saying that some statute will always be incompatible. There may be exceptions to that but that would be a bridge to cross if such legislation were to present itself.
Great analysis as ever – thank you.
[…] should be issued in abstracto has wider implications beyond the present case. Over at Head of Legal, Lady Hale’s ‘attack on the sort of abstract rulings these appellants, both of whom are serving […]
I’m not sure the ban on voting would be disproportionate in the case you mentioned. For a start, the person would I think have the option of voting by post during the period when they were awaiting trial and sentence.
But anyway, seeing a breach of human rights as the result of the naturally arbitrary happenstances of life seems to me in principle a wrong way of looking at proportionality. People’s differing circumstances are bound to lead to any policy having differential impacts on them, but that doesn’t necessarily mean even that any individual impact of the policy is disproportionate, let alone that the policy is disproportionate in principle.
Also: even if we were to restrict the voting ban to prisoners sentenced to over four years (for instance), some of them would be sentenced just before an election; others would be sentenced just after, and might never, in fact, miss a vote at a general election. So is that policy disproportionate too?
I’m not sure the problem can be solved by upping the threshold for the ban, either. Even assuming fixed-term Parliaments (which even the current legislation doesn’t guarantee) it’s easy to imagine how one prisoner who spends six years in prison can miss two general elections, whereas another who spends nine years inside only misses one. Disproportionate?
Finally, these inevitable problems arising from happenstance can’t be solved by giving the decision to judges in individual cases, either. Individual cases would inevitably come before judges at different times, and so judges’ individual decisions would have differential effects. The only way you could get round that would be to require judges to deprive each prisoner of a certain number of general election votes in future regardless of whether they fall within the period of the sentence or beyond.
But how, then, would you ensure reasonably consistency of decisions, so as to make sure judges didn’t make widely disparate orders? Wouldn’t you have to resort to some sort of (dare I say?) “blanket” sentencing guidance, saying that people sentenced for under x time should miss one election, those sentenced for x to y years should miss two, and so on? Or that the number of elections missed should depend on the offence committed? Either approach includes a number of “blanket” rules. Aren’t those rules unfair on people sentenced to serve just over x years, or those who commit a less serious robbery (say) rather than a more serious one? No system can iron out all these possible complaints, and the search for the perfectly calibrated, consistent system, impacting on everyone in the same way, is a doomed one.
It’s simpler, more practical, more consistent (what Strasbourg calls “blanket”) and more proportionate in every sense to simply say prisoners should lose the vote for exactly the time they serve in prison.
Very interesting analysis of Chester. I agree that the result was inevitable and I think that the point made about Strasbourg ruling on purely academic points is a good one.
However, re your comments above, I think you are conflating blanket rules with capricious rules. Consider a rule which says that murder leads to an automatic life sentence save for exceptional circumstances. This is a blanket rule and is compatible with human rights. Now consider a rule which says that in sentencing for, say, driving under the influence of alcohol, the judge rolls a die. If it is a one, the defendent gets three months, if it is a two, he gets six months etc. This is a capricious rule. The former can (rarely) be disproportionate but the latter is much more likely to be so.
I think the rule that you mention above which links the number of elections missed directly to the length of sentence is a good one. As someone who sees equal non-capricious treatment as a fundamental principle of the rule of law, I would personally be happy with a regime that is much harsher than the current one, e.g. at least one general election missed for anyone imprisoned for any length of time, so long as it does not contain the inequitable features of the current system.
There is some evidence that Strasbourg agrees with this analysis as the Italian system permitted in Scoppola is arguably harsher than the UK’s approach.
[…] Prisoner Votes… Carl Gardner, writing at his Head of Legal blog, considers the current position on the right of prisoners to vote in a most useful analysis of the UK Supreme Court judgment: R (Chester) v Justice Secretary, McGeoch v Lord President. […]