On 16 October 2013, a seven-judge panel of the UK Supreme Court (UKSC) unanimously rejected two challenges (R (Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council & Anor and the judgment summary) brought by prisoners serving terms of life imprisonment against their disenfranchisement in UK national elections pursuant to section 3(1) of the Representation of the People Act 1983 (RPA) and in EU Parliamentary elections and UK local elections pursuant to section 8(2) of the European Parliamentary Elections Act 2002.
The UKSC rejected the Attorney General’s submission that the principles proclaimed by the Grand Chamber of the European Court of Human Rights (ECtHR) in its 2005 Hirst (No 2) and Scoppola (no. 3) judgments should not be followed. However, the UKSC declined to issue a declaration of incompatibility under section 4 of the Human Rights Act (HRA); such a declaration has been issued in 2007 by the Scottish registration appeal court in Smith v Scott. Furthermore, the court concluded that EU law does not enunciate an individual right to vote paralleling the stipulation in Article 3 of Protocol I (AP1-3) of the European Convention on Human Rights (ECHR), and declined to make a referral to the European Court of Justice. Rather ironically, the present legal situation in the UK is that pursuant to section 1 of the Representation of the People Act 1981, a prisoner who is serving less than 12 months is eligible to stand in elections as an MP, but not to vote for herself in such elections.
Prime Minister David Cameron, having previously opined that the notion of prisoner voting makes him ‘physically ill’, tweeted that the ruling is a ‘great victory for common sense’. His general observation, albeit for rather different reasons, was shared by Adam Wagner. In the critique that follows, I argue that a more suitable description for this judgment may be judicial realpolitik in a politically toxic zeitgeist with potentially harmful long-term implications for the legal protection of the right to vote in the UK.
Question-framing and point(s) of departure
The main judgment, written by Lord Mance, considers whether the UKSC ought to depart from the ECtHR judgments’ reasoning. The ECtHR’s consistent jurisprudence in cases involving voting eligibility considers at the outset the right to vote in a modern democracy, the extent to which it is infringed in the relevant circumstances, and the justification(s) for such infringement(s). By contrast, Lord Mance’s analysis focuses on whether prisoner disenfranchisement is a fundamental principle of UK law: it concludes that ‘it is difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys’; consequently, following the Horncastle ratio, Lord Mance holds that the Strasbourg jurisprudence should be followed. Scant reference is made to the justifications for disenfranchisement (compare Lady Hale ); the rationales for protecting the right to vote are hardly detectable (compare Lord Clarke ).
The key to understanding the rather casual approach to the right to vote may lie in Lord Sumption’s account of the history of suffrage . He describes prisoner disenfranchisement as ‘mainly the incidental consequence of other rules of law’, and dismisses the claim that it was part of a ‘civil death’ philosophy. By describing the happenstance in which prisoner disenfranchisement came about, Lord Sumption affirms the perception that disenfranchisement has not come about following principled discussion in which the justifications for disenfranchisement were fully threshed out. Lord Sumption submits that  ‘imprisonment is more than a mere deprivation of liberty. It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in society’s public, collective processes’. This argument offers an analytically distinct basis for disenfranchisement than the bases proposed by the UK in its submissions in Hirst (no. 2). Clear legislative aims are important not just because they convey concern and respect for individual members of society whose rights are infringed: they are crucial also because, in their absence, line-drawing turns conspicuously arbitrary.
Consequently, it is unclear from the main judgment whether, absent clear Strasbourg jurisprudence, the UKSC would have held the current blanket ban to be incompatible with AP1-3. It should be recalled that John Hirst was denied permission to appeal against the High Court judgment, leading to his successful ECtHR litigation. In his separate opinion, Lord Sumption declares that he would not have found the RPA to be incompatible with AP1-3. Conversely, Lord Clarke would have likely adopted Strasbourg-like reasoning: in , he notes that ‘there seems to me to be much to be said for the Strasbourg Court’s approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban’. Lady Hale would have possibly joined him, expressing in  ‘some sympathy…for the view of the Strasbourg court that our present law is arbitrary and indiscriminate’, and noting in  that there is ‘an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process’.
More worrying still is the conceptual indeterminacy surrounding the basis for an individual right to vote and restrictions on its exercise that may follow were the UK to withdraw from the ECHR (or indeed repeal the HRA). Lord Mance posits that  ‘under EU law Eligibility to vote in Member States is basically a matter for national legislatures’. Now, the fundamental importance of the right to vote in the UK Constitutional order should be recognised notwithstanding its membership of the EU (or the ECHR). It is at least arguable that EU treaties assume that member states recognise their own citizens’ right to vote, and so the principles of non-discrimination are hardly meant to serve levelling down approaches.
Institutional justiciability and public opinion
The justices clearly diverge as to whether the judiciary should consider challenges to legislation determining voting eligibility. In the main judgment, Lord Mance cites (approvingly) the Attorney General’s submission that the court should respect  ‘the choice made by the institution competent to make such choices in a democracy’. Lord Sumption posits that this is a  ‘classic matter for political and legislative judgment’. In contradistinction, Lady Hale notes that  ‘in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story’ and that ‘if there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional’ (my emphasis).
Nonetheless, Lady Hale begins her opinion  by citing YouGov polls disapproving of prisoner voting, and suggests that ‘[o]f course the exclusion of prisoners from voting is of a different order from the exclusion of women, African-Caribbeans or homosexuals’. Now, it is not usual practice for courts in this country to cite opinion polls, not least in cases concerning fundamental rights: one can assume that the outcomes of some Article 8 cases, for instance, are not always particularly popular. The choice to cite opinion polls is thus rather surprising. Moreover, dismissing any comparison between other electoral exclusions and the disenfranchisement of prisoners seems too quick: for instance, the Prison Reform Trust in its submission to the joint Select Committee notes that an estimated 11% of the prison population is black even though blacks make up only approximately 2% of the UK population; it is at least arguable that, even if the ground for exclusion is not invidious, its consequence is a perpetuation of the marginalisation of black and minority groups from the political process (across the pond, the political ramifications in respect of African-American are far greater, and even the invidiousness of disenfranchising legislation can hardly be dismissed).
Proper acknowledgment of the (prima facie) right to vote of serving prisoners
Lord Sumption contends  that ‘[f]rom a prisoner’s point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty’ and  ‘decline[s] to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer.’ However, notwithstanding the contentious substance of this claim, consistent Strasbourg and UK jurisprudence (explored in the case for letting prisoners vote) has held that the legal question is not whether the infringement or denial of a prisoner’s right to e.g. freedom of expression is a greater deprivation than denial of liberty but, rather, whether it is an inevitable consequence of imprisonment: if it is not, then one needs to consider the justifications for such infringement on its merits, not in comparison with other infringements.
Lady Hale posits that  ‘[t]he Electoral Registration Officer for Wakefield refused his [Mr Chester’s] application for inclusion on the electoral roll. But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote.’ However, consistent Strasbourg jurisprudence, which Lady Hale otherwise accepts, rightly notes that qua adult citizens, prisoners have a prima facie right to vote; the question to be determined is whether legislative arrangements justifiably infringe or unjustifiably violate that right. Hence, the Convention (AP1-3, more accurately) does give Mr Chester the right to vote, though (following Scoppola (no. 3)) a contracting state may legislate to disenfranchise prisoners serving life sentences.
Declaration of incompatibility in abstracto in light of Scoppola (no. 3)
The question whether declarations of incompatibility 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 life for murder, were asking for’ was described as ‘trenchant’, although she notes that  ‘[t]here may be occasions when that [a declaration of incompatibility in abstracto] would be appropriate…[though] the court should be extremely slow’ to do so.
Lord Sumption critiques the outcome of the Scoppola (no. 3) judgment, noting that  ‘wherever the threshold for imprisonment is placed, it seems to have been their [the ECtHR] view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated.’ With respect, this observation is accurate. Elsewhere, I have lamented Scoppola (no. 3)’s step backwards from the First Section Chamber’s reasoning in Frodl which in turn logically followed from Hirst (no. 2). As Judge Thór Björgvinsson’s dissent in Scoppola (no. 3) (cited by Lord Mance in ) stipulated, the judgment ‘offer[ed] a very narrow interpretation of the Hirst judgment’ which stripped it of ‘all its bite’. In particular, Björgvinsson argued, the Grand Chamber had overlooked significant elements of the reasoning in Hirst (no. 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban.
Declining to issue a declaration of incompatibility, Lord Mance notes that  ‘it can…now be said with considerable confidence that the ban on Chester’s voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote.’ Indeed, legislation disenfranchising all life prisoners without individual consideration appears to be compatible with Scoppola (no. 3), whereas such an unequivocal conclusion could not have been drawn after Hirst (no. 2). The chickens of Scoppola (no. 3) have, as it were, come home to roost in Chester and McGeoch. It is open to question whether a case concerning prisoners serving e.g. ten months in prison would have yielded a declaration of incompatibility.
The (ECHR) Rule of Law
On 22 November 2012, after lengthy feet-dragging (discussed on this blog), and on the very last day of the extension granted to the UK to comply with the Hirst (no. 2) judgment, the Voting Eligibility (Prisoners) Bill was introduced. The bill sets out three legislative options: (1) ban from voting those sentenced to four years’ imprisonment or more; (2) ban from voting those sentenced to six months’ imprisonment or more; (3) maintain the status quo. The bill is undergoing pre-legislative scrutiny by a joint select committee which is expected to report to both Houses of Parliament by 18 December 2013.
Now, it is evident that option (3) is incompatible with the Hirst (no. 2) judgment; as Lord Sumption  notes, the explanatory memorandum acknowledges that government is unable to issue a HRA section 19 statement of compatibility. Nevertheless, neither the main judgment nor any of the separate opinions comment on the implications of parliament voting to retain the current ban whilst the UK remains bound by its international obligations. The main judgment merely notes that ‘[w]ithin the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position’. It seems that, in matters concerning supra-national institutions and obligations, rule of law considerations carry less weight.
Article 46 of the ECHR unequivocally stipulates that the UK must abide by a final decision of the ECtHR in any case to which it is a party. Indeed, the Brighton Declaration pronounced  that ‘[t]he Committee of Ministers [of the Council of Europe] should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention.’ The Committee of Ministers in its September 2013 meeting considered the execution of the Hirst (no. 2), underlining the urgency of bringing the legislative process to a conclusion, and declaring its intention to resume examination of the progress made to these ends in December 2013. Meanwhile, 2,354 UK prisoners’ cases (App. nos. 47784/09 et al Firth and 2,353 Others v. UK) are pending before the ECtHR, which adjourned their consideration until 30 September 2013. If, as Lord Sumption posits , ‘the only reasonable conclusion that can be drawn from this [parliamentary] history is that there is no democratic mandate for the enfranchisement of convicted prisoners’, a clash with the Committee of Ministers (and the ECtHR) may be inevitable.
It appears that the legal basis for an individual right to vote in the UK and the (curtailed) protection for voting rights of incarcerated adult citizens lies (only) in the ECHR and its incorporation into domestic law, and is extended (only) insofar as the ECHR does (arguably excluding consideration of eligibility for participation in referenda e.g. the upcoming Scottish independence referendum on 18 September 2014). The main judgment made a ‘negative’ finding, namely that prisoner disenfranchisement as such is not fundamental to the UK, being a stable democracy, rather than enunciated a UK right to vote. Indeed, it is possible to read this judgment as suggesting that, were it not for the ECHR (and the HRA), absent a right to vote, voting eligibility questions in the UK would (at best) be determined based on general non-discrimination principles. This outcome is regrettable.
Dr. Reuven (Ruvi) Ziegler is a Lecturer in law at the University of Reading.
Suggested citation: R. Ziegler, ‘The missing right to vote: The UK Supreme Court’s judgment in Chester and McGeoch’ UK Const. L. Blog (24th October 2013) (available at http://ukconstitutionallaw.org)