Case Comment: R (Chester) v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor

Anja Lansbergen

The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.

Background

Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002.

In 2005 the European Court of Human Rights ruled that RPA 1983 s.3(1) infringed the right to vote contained in Article 3 of Protocol 1 of the Convention (‘A3P1’), which requires contracting states to ‘undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. The Court considered that s.3(1) RPA 1983 ‘imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation…and as being incompatible with Article 3 of Protocol No. 1.’ (Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, para. 82).

Two years after the decision in  Hirst the Registration Appeal Court in Scotland issued a declaration of incompatibility in respect of s.3(1) RPA 1983 (Smith v. Scott 2007 SLT 137). The issue returned to the European Court of Human Rights in 2010, at which time the Court stipulated that the UK must introduce legislation to achieve compliance with the ruling in Hirst within a timetable to be determined by the Committee of Ministers (Greens and MT v United Kingdom (2010) 53 EHRR 710). In 2012 the European Court of Human Rights ruled that, in contrast to the provisions in the UK, the Italian scheme of disenfranchisement fell within the margin of appreciation afforded to contracting states (Scoppola v Italy (No 3) (2012) 56 EHRR 663).

On 22nd November 2012, the day on which the deadline imposed by the Committee of Ministers for implementing Hirst was due to expire, the Voting (Eligibility) Prisoners Draft Bill was published for pre-legislative scrutiny. The Bill puts forwards three options for full Parliamentary scrutiny: a ban for prisoners sentenced to 4 years or more; a ban for prisoners sentenced to more than 6 months; and a ban for all convicted prisoners (a restatement of the existing ban). The Bill is currently under consideration by a joint select committee, which is due to report by 31st October 2013. At its meeting on 6th December 2012 the Committee of Ministers accepted the Bill and select committee scrutiny as a legitimate means of implementing the requirement in Greens (see para. 19 Chester and McGeogh).

Chester and McGeoch

Both Chester and McGeoch are serving terms of life imprisonment.

Chester brought a claim for judicial review in 2008 in respect of his disenfranchisement from voting in UK and European Parliamentary elections, relying on both the Convention rights as incorporated into national law by the Human Rights Act 1998 and on European Union law. In 2011 the Court of Appeal dismissed his claim, declining to issue a second declaration of incompatibility and holding that EU law raises no separate issue.

McGeoch brought a claim for judicial review in 2011 in respect of his disenfranchisement from voting in municipal and Scottish Parliamentary elections, relying exclusively on EU law. The Inner House of the Court of Session dismissed McGeoch’s claim, holding that EU law conferred a right to vote only on those EU Citizens who were residing in a Member State other than that of which they are nationals. The Supreme Court allowed an amendment to include in the application to appeal a claim relating also to disenfranchisement in European Parliamentary elections.

Arguments before the Supreme Court

In so far as Chester relies upon his Convention right in isolation, the argument that he presented to the Supreme Court relied on the judgments of the European Court of Human Rights in Hirst and in Green, invoking well-rehearsed issues of the compatibility of RPA 1983 s.3(1) with A3P1. The novel aspect of both of these cases lay in the invocation of EU law as a means by which to secure alternative remedy for disenfranchisement in respect of municipal and European Parliamentary elections. The appellants sought to argue that EU law confers a directly effective right to vote in European Parliamentary elections (and, in McGeoch’s case, municipal elections) that is, by virtue of Articles 39, 40 and 52 of the Charter of Fundamental Rights, of the same scope as A3P1 as defined by Strasbourg jurisprudence.  Strasbourg jurisprudence is thus, the argument went, effectively imported into EU law – of which the remedy for infringement is not the issue of a declaration of incompatibility, but rather the disapplication of the disenfranchising national legislation. In support of this argument McGeoch relied on the right contained in Article 20(2)(b) TFEU of Citizens of the Union ‘to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State’, as interpreted in line with ECJ (as it then was) case-law on electoral rights – specifically Spain v United Kingdom and Eman v Sevinger. Chester further relied upon a general EU law principle of non-discrimination in allocation of the franchise as established by these cases.

In response to the appellant’s claim, the Attorney General submitted to the Supreme Court that EU law did not confer an independent right to vote in municipal and European Parliamentary elections, but rather secured a right for persons residing in a Member State other than that of which they are nationals to be treated equally under national electoral law. Moreover, the Attorney General withdrew the concession made in earlier cases that RPA 1983 s.3(1) was indeed incompatible with A3P1.  He drew to the Court’s attention that its obligation under s2(1) of the Human Rights Act 1998 is limited to ‘taking into account’ Strasbourg case-law, and that that obligation can be discharged by both considering and rejecting the view taken by the European Court of Human Rights. It would be appropriate to do so in the given case, the Attorney General argued, on three grounds. First, the scheme of disenfranchisement in place in the United Kingdom ought to be considered as falling within the wide margin of appreciation that the European Court of Human Rights had recognised as being appropriate in light of the range of reasonable responses to the issue and the varying legislative attitudes in other Member States. Secondly, the decision in Hirst placed substantial weight on the lack of any recent Parliamentary debate capable of reaffirming the legitimate aims of disenfranchisement. This could no longer be considered true: there had since been three formal debates on the issue of prisoner disenfranchisement, including a debate in the Commons on 10th February 2011 when MPs voted 234 to 22 to maintain status quo. Finally, the Attorney General submitted that it was wrong to consider the disenfranchising provisions in place under RPA 1983 as ‘general, automatic and indiscriminate’ simply because they apply to all imprisoned irrespective of the length of their sentence, given that a sentencing court takes into account the nature and gravity of the offence when deciding whether imprisonment is required. On these grounds the appellants claim would fail even if they were able to establish that they held a right to vote under EU law: notwithstanding the decision in Hirst, the RPA 1983 s.3(1) does not infringe the right imported into EU law by virtue of A3P1.

Judgment of the Supreme Court

The leading judgment of the Supreme Court was delivered by Lord Mance, with whom Lord Hope, Lord Hughes and Lord Kerr agreed.

On the question of the compatibility of RPA 1983 s.3(1) with A3P1, Lord Mance rejected the Attorney General’s invitation to refuse to apply the principles in Hirst. Whilst the margin of appreciation that the European Court of Human Rights had afforded to Italy in Scoppola was wider than might have been anticipated following the decision in Hirst, there was nothing in that case to suggest that the Grand Chamber would revise its view with regard to the blanket ban in force in the United Kingdom (para. 34).  Moreover, though the range of reasonable responses to the issue of prisoner disenfranchisement are indeed broad, the ‘haphazard effects’ of the current scheme of disenfranchisement are difficult to deny (para. 35).

Lord Mance went on to consider the remedy available to Chester, and noted that a declaration of incompatibility is a discretionary remedy. There was no point, he considered, in issuing a second declaration in the given circumstances. He noted also that it was possible to state with  degree of confidence that Chester’s disenfranchisement would be maintained whatever amendments were passed in order to comply with Hirst (para. 40). Highlighting the limits of the role of the judiciary in resolving the incompatibility, Lord Mance concluded that

it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position in relation to both RPA section 3 and EPEA section 8. There is no further current role for this Court, and there is no further claim, for a declaration or, in light of the incompatibility, for damages which the appellant Chester can bring’ (para. 42)

Turning to the arguments raised under European Union law, Lord Mance considered first that Scottish Parliamentary elections are not ‘municipal elections’ for which a right to vote under European Union law may be acquired under the Treaties (para 45). Proceeding to consider whether the applicants have an EU law right to vote in European Parliamentary elections, Lord Mance noted the absence of any indication in ECJ case-law of the intention to import Strasbourg jurisprudence into the right contained in Articles 20 and 22 TFEU (paras. 47 and 56). Lord Mance concluded that the decisions of the ECJ in the cases of Spain v United Kingdom and Eman and Sevinger reflected a right of EU Citizens to be treated equally under national electoral legislation, rather than a self-standing right to vote under EU law (paras. 54 and 58):

‘The Court of Justice did not…import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in the European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such states.’ (para 58)

Lord Mance further considered whether the principle of non-discrimination advanced in those cases was capable of assisting the appellants. The EU law right of non-discrimination was, he considered, not engaged in the current cases given the lack of a jurisdictional link with EU law. In Spain v United Kingdom and Eman and Sevinger the jurisdictional link with EU law had been established not by reference to an EU law right to vote, as claimed by McGeoch, but rather by virtue of the ‘different treatment of comparable situations in a context which fell within the scope of European law, that is voting by nationals residing outside their own Member State’ (para 63).

Lord Mance further considered that had, contrary to his conclusion, a general right of non-discrimination been engaged, there nevertheless would have been no discrimination given that convicted prisoners serving a sentence of imprisonment are not in a comparable situation to those who are not (para 68). Moreover, any relief required by EU law in the event of a breach of such a right would not go further than that which is required under Strasbourg jurisprudence, and as such the only relief available to the applicants would have been a generally phrased declaration that the legislative provisions are inconsistent with Union law (para 72). The Supreme Court could not ‘read-down’ the provisions necessary to rectify any breach, as it would be ‘impossible for the Supreme Court itself to devise an alternative scheme of voting eligibility that would or might pass muster in a domestic or a supra-national European Court. Equally, the Court could not determine or implement the practical and administrative arrangements that would need to be made to enable any convicted prisoners eligible under such a scheme to have the vote’ (para 74).

Lord Mance concluded that it was unnecessary to make a preliminary reference to the CJEU on the issue of whether EU law conferred upon the appellants a right to vote in European Parliamentary elections, as the conclusions reached are acte clair (para.84).

Lady Hale agreed with the judgment delivered by Lord Mance, and delivered an additional judgment (with which Lord Hope and Lord Kerr agreed) that emphasised the importance of the role of the judiciary in safeguarding the rights of unpopular minorities (paras. 88-90). Lady Hale expressed some sympathy for the view of the Strasbourg Court that the current law is arbitrary and discriminate, highlighting that application of the custody threshold to determine disenfranchisement does not explain the legitimate aim that disenfranchisement pursues, that shifts in sentencing policy undermine the suggestion that application of the custody threshold is sufficient to produce justice tailored to the individual case, and that the legislation has a ‘random impact’ depending on whether a given individual happens to be in prison on polling day (paras 92-98).  Notwithstanding these observations, Lady Hale considered that neither appellant would be granted the right to vote under whichever scheme may be developed to comply with the judgment in Hirst. The Court should, she considered, ‘be extremely slow to make a declaration of incompatibility at the instance of the individual litigant with whose own rights the provision in question is not incompatible’ (para. 102).

Lord Sumption and Lord Clark each delivered further judgments. Lord Sumption (with whom Lord Hughes agreed) was more critical of the jurisprudence of the Strasbourg Court than were the other Justices, noting the ‘curious position’ in which it is open to a contracting State to fix a minimum threshold of gravity which warrants disenfranchisement, that that gravity may be determined by reference to the nature of the sentence, that disenfranchisement may be automatic once that threshold has been passed, but that it is not permissible for that threshold to correspond to the threshold of imprisonment (para 135). Nevertheless, Lord Sumption considered it necessary to follow established case-law of the Grand Chamber. Lord Clark adopted the reasoning of both Lord Mance and Lord Sumption, but was less critical of the Strasbourg case-law than was Lord Sumption.

Implications of the decision

The significance of this judgment is two-fold: not only does it firmly mark the respective boundaries of the judiciary and legislature in securing compliance with Convention rights, but it also closes off a potential avenue through which the CJEU may have stepped into the void, recognising the existence of an EU Citizenship right so as to ensure compliance with Convention rights – in respect of municipal and European Parliamentary elections at least – where the national legislature has failed to do so. That EU law does not confer a self-standing right to vote municipal and European Parliamentary elections is perhaps not so well-established a principle as the Supreme Court have found: recent CJEU case law that has seen the extension of EU Citizenship rights beyond previously accepted limits at least raises the possibility that the CJEU might have been willing to recognise an EU Citizenship right in these circumstances (see for example Ruiz Zambrano, in which the CJEU recognised the right of residence of third-country national care-giver in a the Member State of which his dependent was a national). In the event of a reference being made to the CJEU the Court might well have considered that the issue of whether any breach was proportionate fell to be determined by the national Court in line with Strasbourg jurisprudence – thereby having no practical impact over and above the deliberations of the Supreme Court that have taken place – but the very recognition of a jurisdictional link would itself have proved a significant step in the continual evolution of EU Citizenship and its relationship with Strasbourg jurisprudence.

What is clear from the judgment is that no further legal challenges to prisoner disenfranchisement will be considered by the Supreme Court in advance of the implementation of new legislation. The introduction of such legislation remains, however, the subject of oversight by the Council of Europe. At its meeting on the 26th September 2013 the Committee of Ministers underlined urgency of bringing legislative process to a conclusion, declaring an intention to resume examination of the progress made to these ends at a forthcoming meeting in December 2013 (para 19). Though these cases apparently mark the end of the judicial scrutiny of prisoner disenfranchisement, the political battle is thus only just beginning. In the event that the legislative process stalls, or otherwise decides in favour of retaining the status quo, it remains to be seen whether any sanction will be taken against the United Kingdom.

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