Lords Reform Bill incompatible with human rights law, says Deputy Prime Minister

28 June 2012 by

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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  1. Actually, looking at the bill, I’m not convinced a section 19(1)(b) statement is needed. Section 6, which defines the vote, does so by cross-reference to the Representation of the People Act (which we know if incompatible with human rights): *in itself* it bars no one from voting.

    I think this is difficult theoretical stuff, but my feeling has always been that this means that although the Representation of the People Act is incompatible, this bill isn’t. My instinct has always been to think there’s one “root” incompatibility in this situation, rather than two.

    This s19(1)(b) statement suggests government lawyers (and the “thoughtleaders” on this in government would be MoJ’s human rights lawyers, and lawyers at the Law Officers’ departments) must now subscribe to what I’d call the “infectivity” theory, by which incompatibilty can spread across the statute book by cross-reference.

    Although I’ve always inclined pretty strongly to the “root” (or “quarantine”?) theory, I’m not sure which is really right. A debate for serious Human Rights Act anoraks.

  2. At the outset I will declare I have an interest in this.

    When I began the reform process in prison on a personal level, and studying law, the thought occured to me that as I was reforming the system also needed reform. I found constitutional law an interesting area. Administrative law too.

    Parliament grabbed power by beheading King Charles the First. The franchise came much later. Giving convicted prisoners the vote simply extends the franchise. Arguably a natural progression from women getting the vote and then Remand prisoners.

    Supremacy of the people must replace the doctrine of the supremacy of Parliament.

    “The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the head of Her Majesty’s Government in the United Kingdom. The Prime Minister and Cabinet (consisting of all the most senior ministers, who are government department heads) are collectively accountable for their policies and actions to the Monarch, to Parliament, to their political party and ultimately to the electorate.

    As the franchise increased, power shifted to the people and Prime Ministers assumed more responsibilities with respect to party leadership”. http://en.wikipedia.org/wiki/Prime_Minister_of_the_United_Kingdom

    I simply rolled up and parked my legal tank on the lawn of Parliament Square.

    Hirst No2 made “clear that the blanket ban on prisoners voting in elections is incompatible with the UK’s obligations under the ECHR”, Scoppola No3 merely reaffirmed this position. Return to sender.

    From a Prison Law Inside Out perspective there is no democracy in prisons for convicted prisoners. In effect, the prison system is a totalitarian regime. A police State within a so-called liberal democracy. From the inside it was clear that what was needed to change the situation was nothing less than a revolution in democracy. Parliament abdicated responsibility for the issue of whether convicted prisoners should get the vote. The Administrative Court abdicated responsibility by trying to kick the ball back to Parliament. I expected this “hands-off” approach, and quite looked forward to ‘Going to Strasbourg’ (Steve Foster).

    Hirst No2 paras 35 and 36: “following the decision of the Divisional Court in the present case, the Supreme Court on 31 October 2002 in Sauvé v. the Attorney General of Canada (No. 2) held by five votes to four that section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional as infringing Articles 1 and 3 of the Canadian Charter of Rights and Freedoms…The majority opinion given by McLachlin C.J. considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on it required not deference, but careful examination”.

    It is contended that it can be implied from this case that Canada was criticising the UK Parliament and the High Court judgment in Hirst v the Attorney General.

    The Grand Chamber expressed at para 59: “As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle…”.

    The Commitee of Ministers and the UK kicked the ball (or batted) it between themselves for awhile before the UK put it into the Long Grass.

    Ignoring the Hirst problem does not make it go away. Rather, the matter only gets worse.

    “The effectiveness of the implementation of Strasbourg judgments fell outside the remit of Lord Woolf’s recent review of the working methods of the European Court of Human Rights, but he nevertheless referred to the
    importance of this issue and the need for a ‘‘focus on the rapid and effective
    implementation of judgments’’.1 As the Woolf Report suggests, ‘‘both the
    Court and Member States are adversely affected by the non-implementation
    of the Court’s judgments’’2 (not to speak of the consequences for successful applicants and those in comparable situations)”. http://www.londonmet.ac.uk/library/x41420_3.pdf

    I welcome the Deputy Prime Minister’s statement. What a pity that the Minister declaring that the bill introducing a referendum on changing the voting system misled Parliament with it’s compatibility statement!

    It is contended that Scoppola does not one iota make it easier for the UK to comply with Hirst.

    The Attorney General won in the High Court, but the Attorney General won nothing by intervening in Scoppola and trying to get Hirst overturned. Hirst para 61: “There has been much discussion of the width of this margin in the
    present case. The Court would re-affirm that the margin in this area is wide”. Scoppola merely reaffirmed what had already been reaffirmed in Hirst. A pointless exercise save for playing for more time and appeasing Tory backbenchers.

    What it all means is that I am right and the UK State is wrong. Alex Bailin QC (Matrix Chambers) in his Alba lecture stated that if Hirst is the measure then the HRA 1998 is toothless. I agree with him. It follows that the HRA is not compatible with the ECHR. Rabinder Singh QC, who represented the UK in Hirst, has since called for a written constitution.

    A token gesture will not suffice. Nor will the blanket ban remain. The Queen in Parliament is guilty of a human rights violation. There must be individual and general measures to provide the required remedy. That David Cameron must swallow his vomit is his own problem. As the First Minister he is responsible for complying with the Ministial Code. The Code requires the Government to honour its treaty obligations in international law. The AG has accused Cameron of breaching the Ministerial Code. It occured during the motion and HoC “debate” on prisoners votes.

    Prison case law shows that prisoners win when the Judiciary feels its independence is being threatened by the Executive. They are headed on a collision course. This suits my interests. Does Parliament intend to behead all the judges in the Judiciary? Things have moved on since Parliament beheaded King Charles the First. What has emerged since the GC decided Hirst is that between the Executive, Parliament and Judiciary there is a systemic failure. This is why the ECtHR made Greens and MT v UK subject to the Pilot Procedure. It is to assist failing States by pointing out what must be done to provide a remedy for the breach of human rights, and stipulating a time limit of 6 months for compliance. If the UK fails to comply then the ECtHR will judge the 3,500 prisoners votes cases backlogged at the ECtHR.

    The mess left was left by the elephant in the House of commons. There is no spoonful of sugar to help the medicine go down.

  3. Edward C says:

    There has been much constitutional reform over the past two decades, and the quality of much of it has left a lot to be desired. The fiasco over the attempted overnight abolition of the office of Lord Chancellor is a good example. The reform was hastily withdrawn and rehashed when someone told the Blair government a bit about what the Lord Chancellor actually did. It was hugely embarrassing for Westminster at the time, and has since left us with someone still called the Lord Chancellor but who does not sit in the House of Lords and is called a Mr, not a Lord.

    Then there was the lawyer’s vanity project otherwise known as the Supreme Court; this was set up, again hastily (one of the incumbent law lords first heard about it by listening to the radio), again with various mistakes (eg they could not decide what title to call the judges, or whether they were to be styled ‘lords’), and can be summed up as the answer to a question no-one was asking.

    Or we might turn to Mr Clegg’s own first attempt at major reform, the PR referendum. The result of the referendum was that half the electorate ignored it and the other half despised it.

    One might have thought all this would have given Mr Clegg pause for thought. Instead, he trudges on like a dutiful non-commissioned officer at the back of Pickett’s charge, ignoring the searing heat and the comrades falling all around him as he marches towards the Union guns. At this rate, surveying what’s left of his party after the next election, he might have to recall Pickett’s famous words to Lee following the charge: “General, I have no division …”

    Let us consider his logic. It seems that, as a result of the ongoing prisoner voting farce, Mr Clegg would ideally like to back a bill which would entitle serving prisoners to vote (against the express wishes both of the electorate and ministers in the lower chamber) in elections for elected senators (incidentally, costing more than the current system) where the results would be: (i) a vast loss of expertise as successful individuals are replaced with party hacks; (ii) a constitutional crisis as the ‘senators’ would have equal or greater democratic legitimacy than the commons, having larger constituencies; leading to (iii) a complete collapse in the upper chamber’s ability to act as a serious revising chamber.

    It is difficult to read about this issue and not think that the Lords was a better institution before the last round of reforms; (recognising that it has never been an apolitical or perfect institution, but) if you need an illustration of the quality of debate in the upper chamber introduced as a result of political appointees, look up the very recent debate on same-sex marriages on religious premises just before Christmas (December 16th or 19th, if memory serves). On that occasion one peer produced a report by Mark Hill QC, the country’s leading Eccleastical lawyer, which raised certain concerns. The reply, by a recent Labour appointee, was to the effect that ‘courts always apply purposive interpretation – it doesn’t matter what the words of the bill say – the courts will know what we mean really’ (we have been warned) – and he carried the debate on that ground. What does that say about the collective legal knowledge of the upper house – largely debased as a result of its politicisation in the last decade?

    Further, Clegg proposes his reforms on the back of using his small, third share of the vote to enable the Conservatives to scrape over the line in coalition form in the last election. All indications are that his democratic mandate has since reduced dramatically, leaving his party with scant credibility. Does he think he governs for our own good, that he knows better than us humble serfs? As Daniel Hannan points out, in only a slightly different context, in the DT this moring, ‘It’s hard to improve on C.S. Lewis:

    Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”‘

    In the circumstances, Mr Wagner is to be congratulated on sticking to the narrow legal issue, without despairing at the manifest lack of respect for the electorate which Mr Clegg shows.

    More soberly (and political opinions aside), it also raises another issue: if this bill is incompatable with the ECHR, then why not every other bill? This bill would directly be invalid, as senatorial elections would have to include prisoners in some sense. However, every bill currently passed by Parliament is passed incompatably with the ECHR because prisoners are not able to vote by a blanket ban. Why hasn’t Clegg objected to all other Parliemantary business on the same ground? If our current legislature is incompatable, surely every bill will be equally invalid? Or, alternatively, is the fact that we are in reality ignoring the incompatability by continuing to make laws a good illustration of legal realism.

    One could have argued, convincingly, that as it had been ‘business as normal’ since Scoppola, the incompatability of the current electoral system wasn’t a cause of constitutional concern. He can’t, however, have it both ways, and say that ‘normal’ bills are fine, but ‘constitutional’ bills aren’t. It just isn’t logically consistent.

  4. David Mead says:

    It is problematic at an institutional-mechanical level, in terms of the modalities of protecting human rights under parliamentary models such as the HRA that a trick was missed in establishig s.19: that nothing more than a bland statement is required of Ministers. Obviously, in debate much more will come out – and the statement can be used as the basis of questioning – but it would have helped enormously if Ministers had been obliged to explain not simply state. maybe change is afoot – see the relatively lengthy discussion of relevant ECHR principles in the Explan. Notes to the Defamation Bill
    http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0005/en/13005en.htm – and compare the paucity of analysis in the Explan Notes to SOCPA assessing the Strasbourg position on demonstrations around Westminster: http://www.legislation.gov.uk/ukpga/2005/15/notes/division/6/1/14/9

    1. Elin Weston says:

      I do agree that it would have been far more beneficial to have required ministers to provide reasons for their conclusions on compatibility but that was wholly opposed by the then government during the passage of the Human Rights Bill. Practice is slowly improving, thanks in no small part to the work of the JCHR, but remains patchy. The government has indicated that it is willing to produce free-standing Human Rights Memorandums with perhaps greater regularity so we might see further improvements in due course: see evidence of Ken Clarke to the JCHR http://www.parliament.uk/documents/joint-committees/human-rights/Corrected_Oral_evidence_201211.pdf

  5. r1xlx says:

    it would not take more than a small team and a few thousasnd pounds to make sure all prisoners got a voting paper as needed for their own towns.
    this stupid fuss is costing a fortune just because of some crazy old ideas on crime and punishment.
    half the idiots in jail would not bother to vote anyway and the other half are foreigners with no voting rights anyway.

    1. David Mead says:

      Crikey – hard to know where to start in demolishing this.

  6. The Engineer says:

    Is the so-called Lords reform no more than a device to give even more domination to the Political parties? At the last count, our rulers – the members of the three parties – did not have a majority over the rest of us.

    Are we to be limited to voting for candidates from party lists? That doesn’t sound like democracy.

    Will the people (demos) be able to nominate and vote for candidates?

  7. Elin says:

    On bills that Parliament has been told would be incompatible with Convention rights:

    Only the Communications Bill 2003 was introduced into Parliament accompanied by a section 19(1)(b) statement: i.e. a statement that the minister was unable to state that in his opinion the bill was compatible with Convention rights but that the government nevertheless wished Parliament to proceed with the bill.

    The Local Government Bill 2000 was introduced into Parliament accompanied by a section 19(1)(a) statement of compatibility. However that was changed to a section 19(1)(b) statement when the bill passed to the Commons, in light of Lords amendments which sought to retain the controversial ‘section 28’ prohibition on the promotion of homosexuality in schools.

    The House of Lords Reform Bill is therefore only the second bill since the enactment of the Human Rights Act 1998 to be introduced into Parliament accompanied by a section 19(1)(b) statement.

    1. David Mead says:

      Which shows one of the inbuilt problems of mechanisms like s.19 – that they attach at only one point in time (and only to Gov-sponsored Bills, since s.19 specifically refers to Ministers in charge of a Bill)

      1. Elin Weston says:

        That is a potential problem, but the value of s19 (and similar mechanisms in jurisdictions in other Commonwealth states) is not that it provides a determinative answer to the issue of compatibility (particularly as it’s an executive opinion) but rather that it seeks to ensure that the executive considers its legislation against Convention rights. It’s just one part of the whole scheme of the HRA which seeks to involve all branches of government in protecting human rights while protecting parliamentary sovereignty.

      2. It’s important to remember of course that although this bill’s clearly incompatible, in principle a s19(b) statement isn’t an admission of incompatibility – it’s more an admission of uncertainty.

    2. David Mead says:

      and so it is unbelievably ironic that the single piece of legislation introduced where Gov admits it is in breach of the ECHR was upheld by the HoL as not being incompatible (something most could not predict given then state of Art 10 case-law) in Animal Defenders

      1. Elin Weston says:

        I think this is more a reflection of the fact that the s19 statement is not a definitive or authoratative statement of law – the HRA is designed to allow the courts to reach their own conclusions on compatibility. Requiring courts to bind themselves to follow and adopt the same analysis as the government on compatibility issues would surely raise serious questions about judicial independence.

    3. Yes, I think that’s what happened with the Local Government Bill too.

      I remember at the time thinking the s19(b) in that case was a bit political – the Human Rights Act was new, and it offered a way for ministers to signal how strongly they opposed the Lords amendment. I’m not sure it was legally necessary.

      To be clear, I’m not suggesting it’s obvious that section 28 was compatible with human rights – what I’m saying is that it’s questionable whether a bill can fail to be compatible for the sole reason that it does not repeal some other, actually incompatible, legislation. If that were right, then arguably so long as any Act of Parliament is incompatible (the Representation of the People Act, for instance, or bits of it) and there’s no bill to repeal it, then you could argue that every other bill would be incompatible too.

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