The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law.
Under section 19 of the Human Rights Act 1998, a Minister of Crown in charge of a Bill must make a statement to Parliament on whether the Bill is compatible with European Convention on Human Rights. The Explanatory Notes to the new Bill reveal that no such statement of compatibility can be made in this case:
278… the Deputy Prime Minister has said that he is unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998. The Government wishes Parliament to proceed with the Bill notwithstanding that such a statement of compatibility cannot be made.
The reason that the Bill will not be compatible with the ECHR is that perennial headache for this (and indeed the last) Government, prisoner votes. As the explanatory notes explain:
273. In 2005 in Hirst v UK (No 2) (2006) 42 EHRR 41 the Grand Chamber of the European Court of Human Rights found that the blanket ban on serving prisoners voting in House of Commons elections (in section 3 of the Representation of the People Act 1983) was incompatible with Article 3 of Protocol 1. A wide margin of appreciation was afforded to the UK but the blanket ban was outside that margin as it was a “blunt instrument” which “strips the convention right to vote to a significant category of persons and does so in a way that is indiscriminate” (para 82).
And, since the court has refused in the recent case of Scoppola (no.3) v Italy to reverse its ruling in Hirst No 2 (although it did make it much easier for the UK to comply), it is now clear that the blanket ban on prisoners voting in elections is incompatible with the UK’s obligations under the ECHR.
What doe this all mean? Well, it is a bad start for the already controversial Bill. The Deputy Prime Minister is recommending a major constitutional reform bill to Parliament which he is forced to admit will be incompatible with the UK’s international obligations. Putting it another way, Parliament’s next major constitutional reform will be, in its present form, incompatible with Parliament’s last major constitutional reform, the Human Rights Act.
On that point, a proviso. As the explanatory notes make clear, the Government is still deciding what to do about prisoner votes. If it chooses to end the blanket ban – and even a token gesture may be enough to satisfy the European Court of Human Rights – then the problem will disappear. But the Prime Minister has already told Parliament that he expects to defy Strasbourg on the issue, as prisoner votes “should be a matter for Parliament… and not a foreign court”. So without an embarrassing reversal of that statement, it seems likely at present that the blanket ban will remain.
Assuming the ban remains in place, what are the implications for the Bill? It is important to note that it is open to Parliament to ignore the fact that the Bill does not comply with the UK’s ECHR obligations and pass the Bill anyway. It has already voted (albeit in a non-binding vote) that prisoners should remain disenfranchised, so this option seems perfectly possible.
Should Parliament choose this route, it would be open for the courts to make a non-binding ‘Declaration of Incompatibility’ under the Human Rights Act, but they would not have the power to strike the Act down. Another option (although one which seems unlikely) is that the Courts could ‘read down’ the Act to include a provision for some prisoners to vote. Technically, this is possible under the Human Rights Act unless there is an explicit section in the bill excluding prisoners from voting (notwithstanding the fact that prisoners are excluded through the Representation of the People Act 1983 – it’s complicated!). But that would put the courts on a collision course with Parliament.
From a quick poll on Twitter, it seems that there are only two other examples where Parliament was told a bill would be incompatible with the ECHR: the Local Government Bill 2000 and the Communications Bill 2003. Both are now Acts of Parliament.
So the House of Lords rearm Bill could pass without a declaration of compatibility with the ECHR. But the fact that the Deputy Prime Minister has been forced to declare it incompatible simply adds to the already considerable mess which the prisoner votes issue has left behind.
Most commentators agree that the European Court has given the UK a very wide discretion indeed on how to end the blanket ban on prisoners voting. Given the collateral damage caused by the Government’s continuing refusal to do so, arguably the best option now would be to swallow the bitter pill and end the ban.
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