Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Elizabeth Stokes, Senior Lecturer at the School of Business & Law, University of East London. You can read the other contributions in this series here. Posts on the topic are welcome.

As we contemplate the potential demise of the Human Rights Act 1998 in the UK (in no small part due to the decision in Hirst (No2) and its domestic application) it is worth considering what all this means for the protection of prisoners’ human rights in our domestic sphere, and the potential of either the courts or our democratic processes to recognise them.

Outside of the academy (and sometimes within it) more heat than light accompanies discussions of prisoners’ rights. For those who recognise the place of prisoners at the very heart of the human rights project, this represents failure. Even campaigns to enhance public understanding of the Human Rights Act 1998 have sometimes preferred to minimise the emphasis on its importance for prisoners, by seeking to encourage the public to focus its gaze elsewhere, on themselves (see for example Equally Ours – How to talk about human rights). Whilst politically pragmatic this is both a curious and potentially dangerous tactic, looking away should be anathema for human rights advocates, and encouraging others to do so is perhaps unlikely to encourage them to see the legitimacy of claims from behind bars. When prisoners’ rights are discussed by supporters of the Act this is usually not to defend; the ‘all courts are fallible’ line has seemed preferable to confronting the twin hurdles of populist sovereignty and penal populism in the UK. Yet is it precisely these hurdles that make legal rights an essential backstop for human rights protection.

Discussions of Hirst (No2) and subsequent Strasbourg jurisprudence tend to focus on allegations of overreach, though closer legal scrutiny of the reasoning (as covered in a series of UK Constitutional Law Blog posts) demonstrates a wide margin of appreciation was accorded to examination of the legitimate aims advanced by the Government for denial of sentenced prisoners’ right to vote in the UK. If the oft quoted pledge to ‘see our Supreme Court being supreme again’ is supposed to provide a solution to restore the reputation of human rights, then, (as others have noted here) Lord Sumption’s scepticism of some of the Government’s core justifications for retaining the voting ban in R (Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council & Anor should give framers of a British Bill of Rights pause. He doubted [at para 128] that “disenfranchisement of convicted prisoners can realistically be regarded as an additional punishment or a deterrent” and “may at least arguably be said to work against the reform and rehabilitation of the offender”. That the Supreme Court itself may present a potential hurdle was not lost on the new Minster for Human Rights, Dominic Raab MP, who accused the Court of ‘spineless capitulation’ amongst other things.

An examination of the Court’s judgment in Chester provides a useful case study of our senior judiciary’s different conceptions of democracy and the judicial role. Lord Sumption demonstrated rather more deference to the legislature in respect of determining its own constitution [para 137] while Lady Hale, in contrast, recognised the limits of democratic processes and that the courts’ role in protecting unpopular minorities is neither illegitimate nor undemocratic [para 88]. Lord Sumption’s views on the uncertain boundary between law and political decision making in public law are well known (see here and here). This tension between legal and political constitutionalism and attempts to further define the limits of law would no doubt find renewed focus in a post-HRA era.

Despite Dominic Raab’s dismay, campaigners for the legal recognition of prisoners’ human rights might find little to cheer in Chester (except perhaps in Lady Hale’s recognition of prisoners as a minority) and some examination of the arbitrariness of the use of imprisonment in England & Wales (for it is not only in relation to a blanket ban on voting that we have similarities with Russia, and other central and Eastern European States, with the UK remaining the ‘great incarcerator’ of western Europe). Lord Sumption, rather in ignorance of the demographic disproportionality reinforced through our sentencing practice, dismissed the idea that prisoners could constitute a minority with a potential equality rights claim [at para 11] and expressed more faith in the judiciary’s ability to ‘recognise elephants’ (as the custody threshold was memorably described by Ashworth and von Hirsch) than studies of sentencing disparities might support. The distance of these views from an appreciation of the reality of imprisonment was further reinforced by his ill-chosen comparators on the limited value of voting rights to prisoners. To decline to find this as any more significant than “the loss of a long anticipated holiday or the only period of fine weather all summer” [para 115] potentially trivialises both democracy and the pains of imprisonment.

It can be argued that far from being a prisoners’ charter, the domestic judiciary have demonstrated great care in utilising their enhanced powers under the Human Rights Act 1998 when determining prisoners’ claims. Demonstrating a greater willingness to find incompatibility in relation to procedural rather than substantive rights, and mirroring or entering into dialogue rather than moving ahead of Strasbourg developments. Prisoners have been the recipients of some significant improvements as a result of the Human Rights Act 1998, not least in relation to the development of the operational duty for vulnerable detainees and restrictions on the restraint of children in Secure Training Centres as a result of deaths in custody. The claim that prisoners’ have benefitted ‘more than most’ (see Raab, D. (2009) The Assault on Liberty London: Forth Estate. p159) is however difficult to sustain. Not only have successive Governments promoted ever tougher penal policy agendas, presiding over prison population growth, overcrowding and most recently a spike in assaults and suicide, they have been able to do so without the interference of the courts. Due deference has been shown to Governments in relation to penal policy choices and operational issues affecting the administration of prisons (see e.g. R (Jones & Wells) and contrast James, Wells & Lee v UK).

A concern to protect the independence of the judiciary in sentencing matters is another factor which weighs in the balance in this area, sometimes in favour of a prisoner’s claim (e.g. R v Secretary of State for the Home Department ex parte Anderson), and sometimes against, of which Chester itself is perhaps an example since proportionate application of the custody threshold was at its heart.

The Supreme Court’s decision in Osborn was a welcome reminder that residual common law rights will remain to be exercised, sometimes in favour of prisoners, in domestic courts post-HRA (see e.g. here and here). Just as judicial oversight of administrative decisions and standards of review developed in response to prisoners’ claims before the 1998 Act (see e.g. Raymond v Honey [1980] AC 1 127, R v Secretary of State for the Home Department ex parte Leech [1994] QB 198 and R v Secretary of State for the Home Department ex parte O’Brien & Simms [2000] 2 AC 115), the supervisory jurisdiction of the courts in public law will continue to provide an important forum for the airing of prisoners’ rights claims.

Controversy will also continue to surround such judgments, but in the absence of a Bill of Rights which ‘incorporates and builds upon our obligations’ under the ECHR, legal protection will inevitably be weakened. It remains to be seen what a British Bill of Rights might contain, however the rhetorical emphasis on responsibility as well as rights (which the Labour Party were complicit in) bodes ill for continued recognition of sentenced prisoners as worthy rights holders in law. So too does the potential loss of the status of ‘human rights’ from the title of such legislation. With Dominic Raab’s expressed preference for liberty over a ‘rights contagion’, which he believes has undermined democracy, there may be little room for the detained, and non-citizen’s rights. That is if the Government can ever figure out what the ‘core of rights in the European Convention, as originally inspired and formulated’ might be (Raab, 2009: 222) To do so without reference to the idea of human rights (not ‘our historic liberties’) may prove impossible.

Whatever the outcome, it is likely that the place of prisoners in this debate will continue to be rhetorical rather than real, as excluded persons. This is because discussing prisoners’ legal rights without casting light on the experience of imprisonment and placing it within a wider policy context, risks reinforcing popular assumptions about what went wrong with rights. Recognition of essential humanity, a precondition to according dignity, is impossible when walls are in the way. Within the political sphere capturing this context to communicate the value of human rights for prisoners is particularly difficult.

Perhaps those who are searching for an original core of rights might like to reflect on a speech by David Cameron’s favourite past Prime Minister, Sir Winston Churchill, a passage of which is worth quoting in full:

“We must not forget that when every material improvement has been effected in prisons, when the temperature has been rightly adjusted, when the proper food to maintain health and strength has been given, when the doctors, chaplains, and prison visitors have come and gone, the convict stands deprived of everything that a free man calls life. We must not forget that all these improvements, which are sometimes salves to our consciences, do not change that position. The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man—these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it” ((1910) Speech to the House of Commons, Hansard, 20 Jul 1910, col. 1354 when Liberal Home Secretary)

What he would make of the present Prime Minister’s weak constitution is worth thinking about.

Author’s postscript: the Secretary of State for Justice’s familiarity and willingness to align himself with Churchill’s views in his ‘Treasures in the heart of man – making prison work’ speech to the Prisoners’ Learning Alliance on 17^th July 2015 came too late for inclusion in this post. His selective quotation from Churchill, excluding reference to the rights context that was clearly present in the original, and for which the quote is best known, is worthy of note. Perhaps this is a theme to be revisited?

Elizabeth Stokes is a Senior Lecturer at the School of Business & Law, University of East London. She specialises in human rights law, criminal law, mental health and criminal justice.

(Suggested citation: E. Stokes, ‘HRA Watch: Reform, Repeal, Replace? Prisoners’ Rights in Context: What Future under a British Bill of Rights?’ UK Const. L. Blog (20th Jul 2015) (available at https://ukconstitutionallaw.org/))