This Supreme Court prisoner voting decision really is a victory for common sense
16 October 2013
R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)  UKSC 63 – read judgment / press summary
The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.
The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.
We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.
These two claims were always going to be a hard sell , not least because both claimants had committed extremely serious crimes and were themselves highly unlikely to be allowed to vote even if the Government finally implements the 2005 Hirst judgment. So it is unsurprising that the Supreme Court gave them short shrift, also refusing to make a declaration of incompatibility as it was unnecessary in the circumstances.
The Government also asked the Supreme Court to essentially go behind the Strasbourg decisions and disapprove of them: to “refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola” (29). Had the Supreme Court done so, this would have added real ballast to the Government’s position that Strasbourg has gone beyond his remit. It would probably also have precipitated something of a turning point in relations with the European Court, as it has already repeatedly considered the issue and decided upon it in strong terms.
The court rejected the Government’s case on this issue, and rightly so. The opinions of Lord Mance, Lady Hale and Lord Sumption should be read in detail for the Government, as they are replete with the historical and legal sensitivity which has been lacking from the political debate on prisoner votes. These are three justices who may be considered on different ends of the fairly narrow ideological spectrum in the court. Lord Sumption has expressed skepticism of judicial activism in this area.
Lord Mance approved of Strasbourg’s overall reasoning, and found the various decisions since Hirst to be more or less consistent with each other (34-35). He said:
The haphazard effects of an effectively blanket ban are certainly difficult to deny. As the Grand Chamber observed in Hirst (No 2) (para 77) “it … includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity.”
Lady Hale emphasised the logical flaw in the argument that Parliament, which is elected by the enfranchised, should have the final word on who is disenfranchised (89): “Parliamentarians derive their authority and legitimacy from those who elected them, in other words from the current franchise, and it is to those electors that they are accountable. They have no such relationship with the disenfranchised.” She also, however, argued that “the courts should not entertain such claims” of an “individual litigant with whose own rights the provision in question is not incompatible“. This arguably raises the question as to whether Hirst itself should have been entertained, given he had committed similarly serious crimes (see futher Carl Gardner).
Lord Clarke provided the clearest support for the Strasbourg position:
I appreciate that, wherever the line may be drawn, there may be an element of arbitrariness as to the choice and effect of a particular line. But 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. However that may be, I agree that this Court should follow the now settled jurisprudence in the Strasbourg Court for the reasons given by Lord Mance and Lord Sumption.
Lord Sumption, no lefty campaigner he, reached the same conclusion (that Strasbourg should be followed) but from a quite different route. He conducted an interesting philosophical and historical analysis (from 113) of the prisoner voting restrictions which are, in his view, “likely to be a very minor deprivation by comparison with the loss of liberty” (115). Interestingly, he rejected the commonly heard explanation for the deprivation as “civic death” based on social contract theory. Depriving prisoners of the vote:
is not and never has been a form of outlawry, or “civil death” (the phrase sometimes used to describe the current state of the law on prisoners’ voting rights). On the contrary, until the 1960s, it was mainly the incidental consequence of other rules of law. (126)
He went on the find that the Strasbourg court had arrived at a “very curious position” (135) and said that without the European cases, he would have ruled differently. But – and this is an important very important “but” indeed:
… the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the court’s case-law. It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law. The problems about the view which the court ultimately came to were fairly pointed out in both cases in the course of argument.. it has undoubtedly received a great deal of parliamentary attention more recently, in debates which were drawn to the Grand Chamber’s attention in Scoppola but made no difference to its view. There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart. In those circumstances, we would be justified in departing from the case-law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom. I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it.
Lord Sumption then gave the Supreme Court’s final word on this issue, and one which the current Government should listen to:
… it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.
In other words, whilst many may reasonably disagree with the Strasbourg decisions, they are neither perverse nor do they fundamentally undermine the UK’s legal system if implemented. And that, ladies and gentlemen, is a victory for common sense.
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