As is well known, in Hirst v UK (No 2) the Grand Chamber of the European Court of Human Rights concluded that Section 3(1) of the Representation of the People Act 1983, which removed the franchise from prisoners, was a disproportionate restriction of the right to vote found in article 3 of the First Protocol to the European Convention on Human Rights. After two consultation papers, further judgments from the European Court of Human Rights, a declaration of incompatibility from the Scottish courts, a series of criticisms from the Committee of Ministers of the Council of Europe and the Joint Committee of Human Rights, a change of Government and a House of Commons debate, the Voting Eligibility (Prisoners) Draft Bill was proposed and is currently being scrutinised by a Joint Select Committee. To add to the mix, we are awaiting judgment on the latest discussion of the issue by the UK Supreme Court, in R (Chester) v Secretary of State for Justice and McGeogh v Lord President of the Council, heard on 10 June, not to mention the adjourned case of Firth v United Kingdom.

This post will comment on one argument made by the Rt Hon David Davis MP and the Rt Hon Jack Straw MP, both in their contributions to the House of Commons debate on prisoner voting and in the oral evidence submitted to the Joint Select Committee on the Draft Bill. Their argument does not concern the merits, or otherwise, of prisoner voting, examining instead whether the issue should be determine by the European Court of Human Rights, or by the Westminster Parliament. Their claim is not a mere assertion of the sovereignty of the Westminster Parliament over the European Court of Human Rights. Rather, they argue that there are sound constitutional reasons for the Westminster Parliament to determine whether prisoners should vote. They argue that the European Court of Human Rights has taken a creative approach, going beyond an interpretation that focuses on the intentions of the authors of the European Convention on Human Rights. In doing so, the Court has gone beyond its constitutional ambit, in particular because there is no ability for any form of democratic response to the decisions of the European Court of Human Rights. Jack Straw, in particular, draws on Lord Hoffmann’s 2009 lecture to the Judicial Studies Board. Lord Hoffmann argued that the European Court of Human Rights was not suited to take decisions as to the way in which different rights should be balanced, or the application of general broad provisions of rights to very specific situations.

There are two issues here. What is the proper constitutional ambit of the European Court of Human Rights as a ‘European’ as opposed to a ‘national’ institution and what is its constitutional ambit as a ‘court’ as opposed to a ‘legislature’? The answer to this question appears to depend upon the nature of the right in question. The argument is that the European Court is constitutionally suited to decided broad or abstract rights, but specific applications of rights are more suited to national courts. The more a specific application of a right requires a balancing of different rights, or an assessment of different rights and principles, the more the issue is suited to resolution by legislatures. The European Court of Human Rights deals with abstract, fundamental ‘human’ rights. National courts and legislatures deal with how rights are applied to specific situations, or how rights and principles are balanced. This is a form of ‘constitutional’ right – assessing what ‘constitutes’ the specific application of a right according to the legal and constitutional principles prevalent in that national community.  We need to unpack these issues to see whether they form a sound basis for dividing power between the ECtHR and national courts and legislatures.

An overly creative approach?

Has the European Court of Human Rights been overly creative when assessing whether prisoners should be allowed to vote? Difficulties emerge when we try and apply this latent distinction between ‘human’ and ‘constitutional’ rights by looking at the distinction between broad rights and their specific application. Not only is it easy for this to collapse into a mere matter of degree, but the classification of the right may depend upon your particular focus. For example, if we are examining the issue as one of ‘the right of prisoners to vote’ then the issue becomes one that is more specific constitutional right and therefore for national courts. If we are examining the ‘right to vote’ then the issue concerns a broad human right, with the exclusion of prisoner voting needing to be justified as an exception to this broad right, a matter for the European Court of Human Rights to determine. If the justification of the restriction of the right to vote for prisoners depends upon the need to balance other rights and interests then this becomes a matter for national legislatures. As all appear to be sensible accounts of determining whether it is contrary to the ECHR to disenfranchise some or all prisoners, it becomes reasonable to argue whether the issue should be determined by the ECtHR, national courts or national legislatures or a combination of all three. It is hard to regard the ECtHR, therefore, as being overly creative.

Does a different picture emerge when we focus on the extent to which a specific application of a right requires a balancing exercise, weighing up different rights or balancing rights and interests? This distinction can be just as difficult to apply in practice. Does prisoner disenfranchisement depend upon the proper interpretation of the Convention right to vote, suited to the European Court of Human Rights, or does it depend upon a delicate balance of rights and interests and hence is more suited to national legislatures? If there is any consensus that emerges from cases examining prisoner disenfranchisement, it is that the right to vote is seen as a ‘core’ or ‘fundamental’ right, but that the issue of whether prisoners should vote requires a delicate balance of the right to vote against other rights and interests. This is illustrated, for example, in paragraph 84 of Hirst v UK (2). The European Court of Human Rights made it clear that its role was limited “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”. This assessment was repeated in paragraph 85 of the Scoppolla decision.  It is an approach running through the case law on prisoner voting in Canada, Australia and South Africa, as well as in the approach of the Court of Appeal in Chester. Here the courts do not grant a ‘margin of appreciation’ to signatory States, recognising their different constitutional and social cultures, instead granting a ‘wider discretionary area of judgment’ to the legislature. Again, it is hard to conclude here that the European Court of Human Rights has exceeded its proper constitutional role when deciding cases on prisoner disenfranchisement. Prisoner disenfranchisement is a complex and contestable issue. It is reasonable to disagree both as to whether those who commit serious enough offences should not be allowed to vote and, if so, how serious the offence need be to result in disenfranchisement. Many decisions are decided in favour or against the disenfranchisement of certain prisoners by a narrow majority of judges. The only certainty that seems to emerge is that blanket bans, disenfranchising all prisoners, are a disproportionate restriction on the right to vote. This conclusion is reinforced when we look at the outcome in the Scoppolla case. Here an Italian law removed the right to vote from prisoners convicted of a specific series of offences, or those sentenced to terms of three years or more, and removed the right to vote permanently from those sentenced to life sentences or terms of five years or more, subject to a procedural right for the individual to apply for his right to vote to be returned. The court concluded that this was not contrary to Article 3 of the First Protocol. The Italian law was not a blanket ban and it was within the margin of appreciation for the Italian government to regulate prisoner voting in this manner, the ban on voting relating to the serious nature of the offences committed.  There are cases where it is much clearer that the European Court of Human Rights has taken a creative approach than the cases on prisoner disenfranchisement.

Lack of a democratic override?

Let us assume that it was clear that the European Court of Human Rights had been too creative. Jack Straw’s argument is that creative judicial interpretations are far less dangerous in legal systems where there is the opportunity for a democratic correction by the legislature if courts provide too creative an interpretation of rights. The specific example he provides is that of a democratic override in the US, where an overly creative interpretation of the US constitution by the courts can be corrected by Constitutional amendment. If this is all that is required, then it is arguable that the ECHR does provide for a democratic response in a similar manner. The ECHR is a Treaty. Its provisions can be amended by those who have signed up to the Treaty. It may also be easier in practice to modify the Treaty establishing the ECHR than it is to amend the US Constitution.

It may be that Jack Straw has provided a particularly weak example; maybe he would have been better relying on the provisions of the Human Rights Act 1998. But, even if we require more of a democratic override than its mere theoretical possibility, Treaty amendment is not the only way in which democratic input can be given. First, it is possible for the United Kingdom government to appeal decisions to the Grand Chamber of the European Court of Human Rights, as it did in Hirst (2) When presenting its argument to the Grand Chamber, reference can be made to the legislative debate. The same opportunity occurs when the UK government makes representations to the court in cases against other States. The UK government made submissions to the Grand Chamber in Scoppolla v Italy. In doing so it referred to the House of Commons debate on prisoner voting. This was also referred to by the Court in its judgment. The Grand Chamber also does not decide issues in a vacuum. It is aware of the reaction of other legislatures, as well as on-going negotiations between the Committee of Ministers of the Council of Europe and the Governments of the Signatory States.  These may be a predominantly ‘governmental’ as opposed to a ‘legislative’ responses. But the way to correct this is through domestic arrangements, ensuring more legislative engagement with and accountability over Governmental responses and interventions.

Need for democratic override?

The strongest argument in favour of a democratic override is the recognition that the European Court of Human Rights may make mistakes. If prisoner disenfranchisement can reasonably be seen as an issue about the proper scope of the human right to vote, or a specific application of this broad right to a particular constitutional background which may or may not require a balancing of complex social rights and interests, then there is no wonder that there will be disagreement as to whether the Court is being too creative. But does this correction need to be by a legislature? First, if the issue is one of the application of a human right to a specific legal or constitutional situation, then  any correction needed may be better coming from national courts than national legislatures. We can see this when we look at one of the examples Lord Hoffmann n his 2009 lecture, Al Khawaja and Tahery v UK. Lord Hoffmann criticised the judgement of the European Court of Human Rights as too creative. The judgment was also criticised, and ultimately not followed in the Supreme Court decision of Horncastle, as the decision appeared to be based on a misunderstanding of the common law. In the appeal of Al Khawaja before the Grand Chamber, the Government relied on this misunderstanding, and the Grand Chamber referred to the judgment of the Supreme Court in Horncastle. The Grand Chamber  looked specifically at the broader provisions of English law and referred to the approach of other common law jurisdictions to this issue. It concluded that there had been no breach of the Convention with regard to the reliance on hearsay evidence in the conviction of Al Khawaja, but that the Convention had been breached with regard to its specific application to Tahery.  Second, there is no guarantee that the legislature is better placed to balance social rights and interests than the courts, particularly in areas as sensitive as prisoner disenfranchisement. The recent legislation removing the franchise from prisoners in New Zealand provides an interesting example here. Legislation was enacted to impose a blanket ban on prisoner voting, despite the statement of the Attorney General to the legislature that this would be contrary to the New Zealand Bill of Rights Act 1990 and to New Zealand’s human rights obligations in international law.  The legislation was enacted by a narrow majority and it is probably uncontroversial to remark that the arguments presented in favour of the Bill were not a prime example of the merits of democratic debate as a means of protecting rights.

Constitutional or Human – does it matter?

Regardless of whether we categorise the right of prisoners to vote as a ‘human’ or a ‘constitutional’ right, its resolution is complex. We can reasonably phrase the issue as one of the limitation of a fundamental human right, or as the specific constitutional right whose determination involves the balancing of complex social, moral and political philosophies. But, maybe in doing so we are hiding a more challenging issue. Problems arise because the right may be constituted by the values formed by reasoned reflection by the judiciary as to the content of fundamental rights and an assessment of whether the reasons provided for restricting a right hold water combined with a reasoned reflection of the legislature to balancing broader social and moral principles. Or it may just constitute what people think intuitively, or how they feel about granting the right to vote to prisoners – whether that be physically sick or otherwise.   The more the joint select committee continues to focus on obtaining informed advice, and the more the courts provide detailed reasoned for their conclusions, the more the potentially creative interpretations of the European Court of Human Rights can be corrected. Perhaps more importantly, the more we can ensure that the ‘constitutional’ right of all/some/no prisoners to vote will be worthy of the name.

Alison L. Young is a Fellow of Hertford College, University of Oxford.

Suggested citation: A. L. Young, ‘Prisoner Voting: Human or Constitutional Right?’  U.K. Const. L. Blog (27th September 2013) (available at http://ukconstitutionallaw.org).