This Supreme Court prisoner voting decision really is a victory for common sense

16 October 2013 by

ballot_box_vote.ce.03R (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) [2013] 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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  1. Gavin Steele says:

    Lord Clarke suggests there is still space for “detailed consideration of the pros and cons” of ending the blanket ban on prisoner voting by a court. The Supreme Court has already started to unpack that question, but I suppose that kind of analysis might come if and when someone convicted of a minor offence, serving a very short sentence, (ie. not Chester or McGeogh) were to bring a case before the UK courts. Here are a few common-sense thoughts on that:

    – The loss of liberty is the punishment, but prisoners still remain citizens, with valid political views and “a political consciousness”. Those views still count and deserve a hearing.

    – Their lives (far more than most of us) are controlled by a government institution (the Prison Service) subject to political pressure, budget cuts and all the rest. Shouldn’t they too have a say, via the democratic process, in how prison policy is shaped and how the country is run? Presumably this kind of democratic participation was in the minds of the drafters of the Convention when they said that “everyone” should be able to vote.

    – People involved in prison work tell us, loud and clear, that giving prisoners the vote – not to mention the whole debate over prisoner voting! – would in itself help with their rehabilitation: reading the newspapers, becoming familiar with political issues, developing political views are all ways that people often on the margins of society can be brought in to the “mainstream”, making them less likely to offend. Surely that would be a good thing for all of us?

    – Most countries in Europe give at least some prisoners the vote – this is not a “weird” or strange view. It is the UK that is “out of step” with the rest on this.

    Finally, there are intelligent, politically-feasible ways of doing this. The Daily Mail spends a great deal of time and energy telling us that “murderers, perverts, rapists and traitors” should not get the vote. Parliament can quite easily continue to deny the vote to these categories of prisoners, if it so wishes, while nonetheless complying with the Strasbourg judgment – all it has to do is extend the vote to a small number of prisoners who have committed minor crimes – as “Head of legal” and others have advocated. For example, it could opt for the second of the three options laid out in the bill currently being discussed (ie. give the vote to those in prison for six months or less).

    In some ways, the government is to be congratulated on some smart PR with its bill – the stark choice between three options obliges MPs (and perhaps, with a bit of luck, even Daily Mail readers) to think logically about Lord Clarke’s “pros and cons”. By highlighting that it’s not “prisoner voting” per se that is the problem, but the “blanket ban”, it may just be the catalyst for some serious, thoughtful public debate about the issue – something that has been sorely lacking until now.

    1. Andrew says:

      Six months or less won’t work. They serve three months or less and the chances of there being an election in that window are slim. As are the chances of getting it organised. See my earlier post; 16 October 5.55 p.m.

      Theo, if your partner is paranoid about registering, that’s her look-out, but what has being a Buddhist got to do with it?

  2. As a layman who supports the Human Rights Act 1998 I thought their lordships did a
    fine balancing act. The loss of personal freedom I would put as a higher right to be lost than
    one to vote: so why can’t a punishment include a loss of voting? If under Article 5(1)(a) one can be denied one’s liberty at large why can’t that include the liberty to vote?

    If I lived in the civil parish of Dartmoor Forest I would not think it fair if the some 600 of HM’s
    residents influenced the some 750 other voters in parish council elections.

    Would it be possible to draft a provision that prisoners are eligible to vote X years before their imposed sentence ends?

  3. ObiterJ says:

    Some more research tells me that the joint committee will report by 30th October 2013. The timetable after that is not clear.

  4. ObiterJ says:

    The Draft Voting Eligibility (Prisoners) Bill is currently undergoing pre-legislative scrutiny by a Joint Committee of both Houses. It is not clear when that process will end. After that, there will almost certainly be further delay before a government bill is introduced. By then, the 2015 general election will be looming so too late to do anything about it until after the election.

    We may think that the coalition kicked this issue into the long grass and are dragging their heels. Of course, we may think that but the Supreme Court could not possibly comment.

  5. Adam Wagner says:

    I basically agree with you, although my argument wasn’t that the Government’s position on the European Court itself is refuted by this judgment, but rather on prisoner votes more narrowly. I take the point that you can read this two ways: either

    (1) the ECtHR has decided and the decision isn’t perverse so get on with implementing it (my position, Clarke’s and Mance’s, perhaps not Hale’s or Sumption’s, who I think are arguing the decision may be wrong but we should implement it anyway)

    (2) The decision is wrong and if the Supreme Court was really supreme everything would be OK because the Supreme Court would have the final word.

    (2) is best articulated by Carl Gardner –

    But… but

    There are are number of unknowns here. Would our Supreme Court rule any differently on prisoner votes if it knew there was no Strasbourg backstop? I’m not so sure. And is this decision really wrong? There is a range of opinions even in the Supreme Court – see e.g. Clarke at 110

    “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.”

    1. The issue before the Strasbourg court was not whether prisoners should or should not have the power to vote, as is so often assumed. That is a question about which reasonable people can disagree.

      The issue was whether a democratic legislature’s decision to deny prisoners the power to vote fell outside the range of legitimate options, so as to violate the rights of individuals under Article 3 protocol 1. Even if you take the view that (some or all) prisoners should have the power to vote, the legislature’s decision to deny them this power falls well within the margin of appreciation.

      Hirst is just obviously wrong (as for example was Osman, and several other poorly, indeed scantily, reasoned decisions), and the ECHR’s position is incoherent (as Sumption explains).

      If we are to defend the Convention we have to face up to the uncomfortable truth that the Strasbourg court has, put politely, considerable room for improvement.

      The best thing about this case is that the so-called ‘extremists’ on the court (‘liberal’ Hale and ‘conservative’ Sumption) are in full agreement for the same reasons. The legal realist approach of thinking law is just politics by other means, is just not true in the UK.

  6. I doubt that Sumption’s judgment somehow refutes the government’s in the way you suppose.

    Sumption, as you point out, essentially says the European Court of Human Rights has got it wrong on prisoner voting. I agree. Put bluntly, the idea that depriving someone of the power to vote when they commit a crime is somehow more objectionable than depriving them of liberty of movement (and lots of other liberties prima facie protected by the Convention) is ridiculous.

    But, the ECHR’s decisions on this matter are quite clear. The relevant arguments have been put and rejected. Member states, and their courts, do not get to interpret for themselves what the open textured rights in the Convention mean. Quite right too. The system could not work were it otherwise.

    But, that means when the court in Strasbourg gets something wrong, as they have on prisoner voting, we are stuck with it. As Sumption says.

    That is the very thing Grayling objects to. Now, I think having to put up with errors made by the Strasbourg court, which is made up of judges who are mainly third rate, is on balance a price worth paying for this system of international law. He does not,

    To think however that a careful reading of this decision somehow refutes Grayling’s position is a bit daft.

  7. Given the amount of miscarriages of justice, all prisoners should retain voting rights.

  8. Andrew says:

    Prisoners should be allowed to vote if (1) they have been sentenced to less than five years (remand prisoners are too short term for it to be practical) (2) more than three months before polling day (to allow for the administration to work) and (3) are already on the register – or were on last year’s if the new one has come into force since they were banged up. That will include the genuinely interested and exclude the chancers. The vote will be at the address of registration and I think it had better be a postal vote. Since polling day occurs at regular and predictable intervals – barring by-elections – this should be straightforward to administer – it would require cooperation between NOMS and the LA’s but please don’t tell me that can’t be managed . . .

    1. sjb says:

      remand prisoners can vote now

      1. Andrew says:

        In theory. But you try making it work.

    2. Theo Hopkins says:

      Ummmm. Lots of people are not on the register. The “scum” of society are seldom there. But it is for this scum that we need human rights.

      You are effectiely saying only “good” citizens can vote. Be gone with you!

      (And my partner is not on the register – she is too involved in activism, is an anarchist and a Buddhist. Being on the register is one of the ways the police monitor and check on people. But if she is off to jail again, then she might want to vote for the hell of it.)

  9. Gavin Steele says:

    Blimey – and that’s from Sumption too. What a good egg he’s turning out to be! (but crafty with it). Is this the beginning of “turning the corner” on the UK blanket ban on prisoner voting in the UK? Only a couple of weeks ago Chris Grayling – playing to the Daily Mail gallery – was pontificating that the “Supreme Court should be supreme” instead of those dodgy foreigners in Strasbourg. Well, Chris, how do you feel now that the sterling yeomen of the UK’s highest court have in effect told you the same thing: give a handful of prisoners the vote (though not, as it happens, McGeoch and Chester) and end the blanket ban. The hidden message from the Supreme Court seems to boil down to this: APPLY THE BLOODY CONVENTION!

    And it IS a “hidden” message, since at first glance the ruling appears to say the opposite: these two particular plaintiffs lost. David Cameron was swift to capitalise on that misunderstanding – and indeed, from much of the press coverage so far you’d think the Strasbourg Court had been severely slapped down.

    But this ruling could herald the beginning of a slow sea-change on this vexed question. As Adam points out, simply by lucidly unpacking the constitutional context and historical background to prisoner voting, the SC justices have already helped… by moving the debate into more nuanced and informed territory. No more will the tabloid megaphone-toters hold the monopoly on this one (even Daily Mail readers got to read Lady Hale’s careful take on the question today…).

    Finally, there’s the palpable fact that the most conservative justice on the Court is saying – clear as day – “don’t defy the European Court, at least not on this one”. There’s still a long way to go to convince parliament – still less the country – on this, but the judges (and not foreign ones) have spoken. That’s progress. A good day for common sense indeed!

  10. […] also Adam Wagner’s post on UKHRB: perspicacious as […]

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