50901800

Critically evaluate the United Kingdom’s stance on the

enfranchisement of its prisoners.

This dissertation shall explore the jurisprudence of the European Court of Human

Rights and the current domestic legal situation regarding prisoner

disenfranchisement in the United Kingdom. I shall then analyse the responses of the

institutions of the United Kingdom to the Strasbourg case law. The wider

constitutional issues facing the United Kingdom will then be analysed, using prisoner

disenfranchisement as the context to draw conclusions on the potential impingement

of parliamentary sovereignty by the Strasbourg court.

22 April 2014

This dissertation is submitted in partial fulfilment of the LLB Honours Degree.

1

Contents

Contents 2

Primary Sources 3

Introduction 6

Chapter I – Locked out of Democracy 9

1.1 What is the disenfranchisement? 9

1.2 Case law of the European Court of Human Rights. 12

1.3 Tension between the UK and the European Court of Human Rights. 19

Chapter II – Justifications for Prisoner Disenfranchisement 23

2.1 History, Human Rights, and Penal Populism 23

2.2 Civic Death 24

2.3 The Social Contract Theory 28

2.4 Reform and Penal Populism 34

Chapter III – The Broader Constitutional Context 38

3.1 Parliamentary Sovereignty 38

3.2 The ECHR as a ‘Living Instrument’ 41

3.3 A Conscious Reassertion of Parliamentary Sovereignty? 44

3.4 Is there a Democratic Deficit? 50

Conclusion 53

Bibliography 56

2

Primary Sources

Table of Legislation:

Domestic Legislation:

Criminal Justice Act 1967

Murder (Abolition of the Death Penalty) Act 1965

Representation of the People Act 1969

Representation of the People Act 1983

Representation of the People Act 1987

Voting Eligibility (Prisoners) Draft Bill

International and Regional Treaties:

Convention for the Protection of Human Rights and Fundamental Freedoms

(European Convention on Human Rights as amended) (ECHR)

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into

force 21 October 1986) (1982) 21 ILM 58 (African Charter)

International Covenant on Civil and Political Rights (adopted 16 December 1966,

entered into force 23 March 1976) 999 UNTS 171 (ICCPR)

The Universal Declaration of Human Rights (adopted 10 December 1948 UNGA RES

217 A(III) (UDHR)

3

Table of Cases:

Domestic Cases:

Chester v Secretary of State for Justice; McGeoch v The Lord President of the

Council & Anor [2013] UKSC 63

R. v (1) Secretary of State for the Home Department (2) Election Registrations

Officers, Ex Parte (1) Pearson (2) Martinez: Hirst v HM Attorney General [2001]

EHWC Admin 239

R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL

SSHD v. AF and Others [2009] UKHL 28

European Court of Human Rights Cases:

Frodl v Austria (Application no. 20201/04) [2010] ECHR

Goodwin v. The United Kingdom (Application no. 28957/95) [2002] ECHR

Greens and M.T. v. The United Kingdom (60041/08) [2010] ECHR 1826

Hirst v. United Kingdom (No. 2) (Application no. 7402/01) [2005] ECHR

Kress v. France 39594/98 [2001] ECHR

R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014]

EWCA Crim 188

Scoppola v. Italy (No. 3) (Application no. 126/05) [2012] ECHR Grand Chamber

The Case of Othman (Abdul Qatada) v. The United Kingdom (Application no.

8139/09) 17 January 2012

4

The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook on the

European Convention on Human Rights

Tyrer v. The United Kingdom 2 EHRR 1 (25th April 1987)

Vinter v. the United Kingdom (application no. 66069/09) [2013] ECHR

5

Introduction

Throughout the last decade the issue of prisoner disenfranchisement has been present

in the legal and political spheres of the United Kingdom. It has attracted significant

attention from the public and media alike, and there is significant academic

commentary on the subject. Currently, the law in the United Kingdom is clear –

convicted criminals cannot vote in parliamentary, local, or European elections for the

period of their imprisonment. The European Court of Human Rights has ruled that

this position constitutes a direct violation of the right to free elections as enshrined in

the European Convention on Human Rights. Legislative reform may, however, be on

the horizon in the form of the Voting Eligibility (Prisoners) Draft Bill.

Underlying the prisoner disenfranchisement issue has been a wider constitutional

debate surrounding the relationship between the executive and legislature of the

United Kingdom and the European Court of Human Rights in Strasbourg. It has been

argued that judgements from the Strasbourg court on controversial topics have

resulted in a democratic deficit and thus an infringement of parliamentary

sovereignty. Indeed the prisoner voting issue has been a significant contributory factor

to the tense and fractious relationship that exists between the United Kingdom and the

Strasbourg court.

This dissertation shall critically analyse the issue of prisoner disenfranchisement in

the reference to the broader constitutional context, with each chapter analysing

different issues within the debate.

6

The first and second chapters of this dissertation focus on the background to the

blanket ban in both the European and domestic setting. Chapter I sets out to achieve a

comprehensive analysis of the Strasbourg court’s jurisprudence on the prisoner

disenfranchisement issue through its case law, and British support for the continuation

of the ban. I shall trace the reactions of the public, politicians, and press to the most

high profile Strasbourg cases concerning prisoner disenfranchisement. Conclusions

shall then be drawn on reasoning for the tensions that can be felt between both

entities. It shall be argued that this tension appears on two levels: the first level relates

to stubbornness to reform that stems from political fear of public opinion, the media,

and “Euro – scepticism.” The second level of tension runs a great deal deeper.

Chapter II evaluates the historical justifications for the blanket ban, and examines if,

in this era of universal human rights, such justifications are legitimate. From here I

shall evaluate the proposed legislative reform, adding my own proposals to fill in

what I believe to be gaps in reform.

The second level of tension relates to the broader constitutional context and the

parliamentary sovereignty debate that now surrounds the prisoner disenfranchisement

issue. This question of sovereignty shall be explored through illustration of a clash

between the Diceyan notion of sovereignty and the interpretation of the Convention as

a “living instrument” by the Strasbourg court. Conclusions shall then be drawn on a

conscious reassertion of sovereignty by the British judiciary, executive, and

legislature. The question of an impingement of parliamentary sovereignty shall be

answered through an evaluation of the Strasbourg court’s judgements in relation to the

United Kingdom.

7

In this way the nuances of the relationship may be illustrated both within the sphere of

prisoner disenfranchisement and its wider context, highlighting issues within the

relationship that are troublesome. These centre on a perceived democratic deficit, the

interlinking nature of law and politics within the United Kingdom, and a clash of

interpretative norms.

‘law has often played second fiddle to politics in the regulation and maintenance of

the UK’s constitutional system.’1

1 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series 2012 , Working Paper No. 1

8

Chapter I – Locked Out of Democracy

1.1 What is the Disenfranchisement?

Criminals in the United Kingdom who are serving a custodial sentence do not have

the right to vote. The ban was enshrined in the Representation of the People Act 1983

as amended by the Representation of the People Act 1985.

(1) 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.2

This is an unqualified provision meaning that no prisoner3 in the UK has the right to

vote – thus, a blanket ban on incarcerated criminals voting is in place. The right to

vote has been an historically contentious area; it has signified the progression of civil

rights as illustrated by the extension of the franchise to marginalised groups of

society. Key (historical) examples include the British women’s suffrage movement in

the twentieth century, the US Voting Rights Act of 1965 which allowed for the mass

enfranchisement of racial minorities, and the achievement of equal voting rights in

post-apartheid South Africa in 1994.

2 Representation of the People Act 1983 s. 33 Remand prisoners have the right to vote due to the amendment of the Representation of the People Act 1983 with the Representation of the People Act 2000. This was achieved by the insertion of s. 7A into the 1983 Act.

9

‘During the twentieth century, constitutional democracies have tended to extend the

franchise to once-excluded groups: women, racial and ethnic minorities, the indigent

and the illiterate. Having extended the franchise to these groups, a legislature could

not try to withdraw it without inviting great political controversy.’4

As such, the right to vote is an internationally recognised civil liberty and human right

which is afforded a high level of protection at both international and domestic levels.5

Most relevant to this paper are the protections afforded to the franchise in Europe, and

specifically, the European Convention on Human Rights.6 Article 3 of Protocol 1 of

the ECHR states that:

‘The High Contracting Parties 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.’7

The UK’s current position on prisoner disenfranchisement finds runs contrary to the

ECHR, as section three of the Representation of the People Act 1983 violates Article

3 of Protocol 1. Therefore, it is evident that the UK is dismissing its treaty obligations

which dictate that there is an obligation to bring domestic law in line with the

applicable treaty provision.8 The UK’s position has led to a plethora of cases going

4 Michael Plaxton, Heather Lardy, ‘Prisoner Disenfranchisement: Four Judicial Approaches’, 28 Berkeley J. Int’l Law. 101 (2010)5 The Universal Declaration of Human Rights (adopted 10 December 1948 UNGA RES 217 A(III) (UDHR) art. 21; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter).6 Hereinafter referred to as the ‘ECHR’7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Article 3 of Protocol 18 Ibid art. 46

10

before the European Court of Human Rights,9 the first of which was Hirst v UK (no.

2).10 11

9 Hereinafter referred to as the ‘ECtHR’10 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR11 There are currently 2354 applications against the UK regarding prisoner disenfranchisement that ECtHR have adjourned its consideration of.

11

1.2 Case law of the European Court of Human Rights

In 1980 John Hirst was convicted of manslaughter and sentenced to fifteen years in

prison for killing his landlady with an axe. Hirst served ten years on top of his original

sentence due to offences committed while imprisoned. Upon release he started the

process that would ultimately lead to the current contentious position between the UK

and the ECtHR. Hirst had attempted to register as a voter at his local Electoral

Register Office, but was denied. As a result, Hirst brought a challenge to the High

Court questioning the legality of the blanket ban.12 However, Lord Justice Kennedy

ruled that the issue of prisoner disenfranchisement was ‘plainly a matter for

Parliament not for the courts.’13

Consequently, Hirst brought his case before the ECtHR in 2004, raising the

aforementioned violation of Article 3 of Protocol 1 before of a bench of seven

Strasbourg judges. Indeed the Court held that the blanket ban did constitute a

violation of the ECHR. Such a result obliged the then Labour government to appeal

the judgement, desperate to maintain the ban and maintain political credibility. The

first inextricable link between British legal order and politics can be seen here.

The appeal was held on 6th October 2005 in the Grand Chamber of the Court. A bench

held by a majority of twelve to five that the UK’s blanket ban on prisoner voting,

without regard to the nature or gravity to the offence, constituted a violation of Article

3 of Protocol 1 of the ECHR. The ban was regarded as disproportionate to any

legitimate criminal justice aim. The majority ruled that section 3 of the RPA 1983:

12R. v (1) Secretary of State for the Home Department (2) Election Registrations Officers, Ex Parte (1) Pearson (2) Martinez: Hirst v HM Attorney General [2001] EHWC Admin 23913Ibid para. 41

12

‘is indiscriminate. It imposes a blanket restriction on all convicted prisoners in

prison… irrespective of the length of their sentence and irrespective of the nature or

gravity of their offence and their individual circumstances.’14

Further, with regard to public policy and the domestic democratic process, the Grand

Chamber also stated that,

‘there is no evidence that Parliament has ever sought to weigh the competing interests

or to assess the proportionality of a blanket ban on the right of a convicted prisoner

to vote… [i]t cannot be said that there was any substantive debate by members of the

legislature on the continued justification in light of modern day penal policy and of

current human rights standards for maintaining such a general restriction on the

right of prisoners to vote.’15

Due to the nature of the judgement and the finding of a clear violation of the ECHR, it

was clear that domestic reform was needed in this area. The Court did not, however,

give any explicit guidance as to the nature of such reform and left it up to member

states of the Council of Europe to resolve the violation by their own means, through

the ‘margin of appreciation’ of the Member States as established in the The Cyprus

Case.16 17

14 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR para. 82 15 Ibid para. 7916 The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook on the European Convention on Human Rights, 172-197.17 For further reading on the ‘margin of appreciation’ Steven Greer offers excellent commentary in ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights’, available at <http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17%282000%29.pdf>

13

‘it should be for the legislature to decide whether any restriction on the right to vote

should be tailored… It cannot accept however that an absolute bar on voting by any

serving prisoner in any circumstances falls within an acceptable margin of

appreciation.’18

The Grand Chamber also maintained that automatic disenfranchisement based ‘purely

on what might offend public opinion’ cannot be reconciled with the Convention

system.19 This was to be a great source of controversy in the prisoner

disenfranchisement debate, as British public and political opinion was somewhat

allergic to the notion of abolishing the blanket ban and led to accusations that the

Strasbourg court was impinging on the democratic processes of the UK.20 Following

the Hirst judgement, then-Prime Minister Tony Blair told the House of Commons

that,

‘The current position in law is that convicted prisoners are not able to vote, and that

will remain the position under this Government.’21

There was little movement from the UK to reform the blanket ban post Hirst

judgement. The Joint Committee on Human Rights22 appeared to pre-empt more

judicial action in its report published in March 201023 – significant disappointment

was expressed by the committee with regard to the lack of domestic development in

18 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR) para. 4119 Ibid.20 The relationship between the ECtHR and UK shall be discussed in greater detail in Chapter 3 of this thesis with focus on the Parliamentary sovereignty debate.21 LSE Human Rights Futures Project, ‘Prisoner Voting and Human Rights in the UK’, June 2013 <http://www.lse.ac.uk/humanRights/articlesandTranscripts/2013/PrisonerVotes.pdf> accessed on 22nd October 2013 22 Hereinafter referred to as the ‘JCHR’23 Joint Committee on Human Rights, ‘Enhancing Parliament’s role in relation to human rights judgements’, 15th Report of 2009-10, published in March 2010

14

the execution of the Grand Chamber’s judgement in Hirst. Soon after publication of

the JCHR report, the case of Greens & M.T.24 was brought before the Court, again for

a breach of Article 3 of Protocol 1. The applicants, two convicted criminals serving

prison sentences at HMP Peterhead, had posted voter registration forms to the

Electoral Registration Officer for their region from their prison address on 23 rd June

2008. On 12th August 2008, the applicants received word from the Electoral

Registration Officer that their application had been refused due to their status as

incarcerated convicted criminals. Subsequently the Strasbourg court, found on 23rd

November 2010, that the refusal to register the applicants as voters constituted a

violation of Article 3 of Protocol 1 and thus the right to free elections that it

enshrines.25 This was directly as a result of a failure to act upon the Hirst judgement

and facilitate reform of the RPA 1983. The Court stated that the UK must:

(a) bring forward, within six months of the date upon which the present judgment

becomes final, legislative proposals intended to amend the 1983 Act and, if

appropriate, the 2002 Act in a manner which is Convention-compliant; and

(b) enact the required legislation within any such period as may be determined by the

Committee of Ministers;26

This six month period was, however, extended by the UK’s intervention as a third

party in the case of Scoppola v Italy (No. 2).27 Attorney General Dominic Grieve

believed that the Court had not given sufficient consideration to the notion of

24 Greens and M.T. v. The United Kingdom (60041/08) [2010] ECHR 182625 Ibid. paras. 73 - 7926 Ibid. 27 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR

15

‘different approaches between states to the same social issue.’28 The Grand Chamber,

however, stated that:

‘It does not appear, however, that anything has occurred or changed at the European

or Convention levels since the Hirst (no. 2) judgement that might lend support to the

suggestion that the principles set forth in that case should be re-examined. On the

contrary, analysis of the relevant international and European documents… and

comparative-law information… reveals the opposite trend, if anything – towards

fewer restrictions on convicted prisoners’ voting rights.’29

Thus the Court reiterated its position in Hirst and Greens & M.T. on the UK blanket

ban and brought the attention of the Committee of Ministers30 due to stubborn lack of

movement in the direction of reform. The Court’s judgement on Italian

enfranchisement if also of importance to this paper – prisoners in Italy sentenced to

five years or more are disenfranchised for life, with the possibility of applying for re-

enfranchisement following release. Prisoners sentenced to between three and five

years are disenfranchised for five years. The Court found in favour of the Italian

approach, accepting that the Council of Europe Member States should have a wide

margin of appreciation both with regard to the nature of offence resulting in

disenfranchisement, and whether this is subjectively decided by a judge on a case by

case basis or objectively by the general application of domestic legislation. In doing

so the Grand Chamber moved away from the position set out in by the Court in

28 Rowena Mason, ‘Government tells European Judges No Right to Meddle with UK Prisoner Vote Policy’, The Telegraph, 2nd November 2011 <http://www.telegraph.co.uk/news/8865204/Government-tells-European-judges-no-right-to-meddle-with-UK-prisoner-vote-policy.html> accessed on 31st October 201329 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR para 9530 The Committee of Ministers is the body charged with overseeing the domestic implementation of ECtHR judgements as provisioned for in art. 46(2) of the ECHR.

16

Frodl31 which stated a judge was the only person who could decide on the

disenfranchisement of prisoners.

What is very clear from the jurisprudence of the ECtHR is that they consider the right

to vote as a fundamental human right and not a privilege as had been argued by the

UK.

‘This case is of paramount importance not just because of the number of people that it

potentially affects, but because it implicitly answers the question of whether the right

to vote is a fundamental human right deserving of the highest degree of governmental

protection or whether voting is merely a privilege conferred upon citizens which may

be removed in order to achieve the objectives of punishing or deterring crime.’32

The issue of prisoner voting has also highlighted a tension between the ECtHR and

the executive and legislature of the UK. This is evident in the political rhetoric

throughout the saga and also by the stubbornness and unwillingness to reform the

RPA 1983 and bring it into line with Article 3 of Protocol 1 of the ECHR. As this

dissertation intends to evaluate the relationship between the UK and ECtHR in the

context of prisoner disenfranchisement, I believe it is firstly crucial to analyse this

inherent tension. In my opinion this tension can be divided into two. Firstly,

superficial tension emanating from political fear due to public opinion and media

influence. The second level is much more complex and concerns the question of

31 Frodl v Austria (2010) (Application no. 20201/04) [2010] ECHR32 William Ashby Powers, ‘Hirst v. United Kingdom (No. 2): A first look at Prisoner Disenfranchisement by the European Court of Human Rights’, Connecticut Journal of International Law, Vol. 21. No. 30 2006

17

Parliamentary sovereignty and the possible impingement upon democratic process by

the ECtHR.33

1.3 Tension between the United Kingdom and the European Court of Human Rights

33 The Parliamentary sovereignty issue shall be dealt with in much greater depth in Chapter III of this dissertation.

18

On 10th February 2011, six years after the issue of prisoner disenfranchisement first

reared its head in the Hirst judgement parliamentarians from all sides of the House of

Commons spoke to support a back-bench motion in favour of maintaining:

‘The current situation in which no prisoner is able to vote except those imprisoned for

contempt, default or on remand.’34

At the conclusion of the debate 234 of the House were in favour of the motion, with

only 22 opposed. The debate, having been five years in the offing, showed landslide

opposition to the introduction of remedial legislation. Indeed such vociferous political

opposition to the Strasbourg Court’s decisions can be felt not only in the Commons

ballot vote box but also in the rhetoric of prominent parliamentarians. Attorney

General Dominic Grieve stated that prisoners receiving the vote would make him

‘rather angry’35 while Prime Minister David Cameron voiced his disgust towards such

possibilities by saying it makes him feel ‘physically ill.’36 These sentiments are

echoed across the House and it is not surprising that there is a clear view amongst

parliamentarians that the blanket ban remains a crucial provision in electoral

arrangements.

Alongside this clear opposition to reform, an air of negativity towards the notion of

ECHR and broader European membership could be felt from the back benchers.

Hiebert states that:

34 D. Davis, MP, HC Deb., vol. 523, col. 493, 10 February 2011.35 D. Grieve, MP, HC Deb., vol. 523, col. 511, 10 February 2011.36 D. Cameron, MP, HC Deb., vol. 517, col. 921, 3 November 2010.

19

‘The debate is notable not only for MPs’ willingness to repudiate the idea that

Parliament should comply with the European court, but also for encouraging a

broader debate about whether Parliament should withdraw from the Convention.’37

“Euro-scepticism” appears to have gained a foothold in British public opinion and

media in recent years. This has been evident in the Qatada (Othman v. UK)38 debacle

in which fierce opposition was evident to extremist Muslim cleric Abdul Qatada

avoiding deportation to Jordan.39 This issue also generated further discussion over

withdrawal from the ECHR and anger that a foreign court could overrule a decision of

the UK executive which was democratically supported by the legislature. Indeed,

parallels can be drawn with the prisoner disenfranchisement issue. Analysing this

cynically, it may be argued that politicians are engaging in a point scoring exercise,

safe in the knowledge that such opposition to the Strasbourg court and ECHR

membership is greatly supported by public opinion.40

Added to this was the recent furore and fear of mass immigration of Romanians and

Bulgarians following the ending of UK controls on immigration from these countries.

This moral outrage was largely fuelled by politicians41 and the media,42 and plays on

37 Janet Hiebert, ‘The Human Rights Act: Ambguity about Parliamentary Sovereignty’, 14 German Law Journal (2013)38 The Case of Othman (Abdul Qatada) v. The United Kingdom (Application no. 8139/09) 17 January 201239 Media articles such as this highlight negativity surrounding UK ECHR membership: The Daily Mail, Smirking Qatada goes – now for the rest of them: May gets her man, and prmosies quicker deportations in future <http://www.dailymail.co.uk/news/article-2357651/Smirking-Qatada-goes-rest-May-gets-man-promises-quicker-deportations-future.html> accessed on 10th Novemeber 2013 40 YouGov Poll, 10th – 11th February 2011, <http://cdn.yougov.com/today_uk_import/YG-Archives-Pol-ST-results-11-130211.pdf> accessed on 10th December 2013 41 Godfrey Bloom MEP, UK cannot afford Bulgarian and Romanian immigrants, UKIP MEPs 6th November 2012 <http://www.ukipmeps.org/news_642_UK-cannot-afford-Bulgarian-and-Romanian-immigrants.html> accessed on 12th December 2013 42 Leo McKinstry, Mass immigration is destroying our once great nation, The Daily Express 30th December 2013 <http://www.express.co.uk/comment/columnists/leo-mckinstry/451080/Mass-immigration-is-destroying-our-once-great-nation> accessed 15th February 2014

20

the fact that the majority of the general public do not differentiate between the

Council of Europe and the European Union. Europe has been portrayed as the root of

all evil in recent years due to a small number of controversial cases of which the

prisoner disenfranchisement issue is one, this has been seized upon by the media and

has resulted in deep public scepticism of both the ECHR and EU. This has

undoubtedly been leveraged upon by politicians fearful that ‘Euro’ support may spark

a public and media backlash.

Although the Romania and Bulgaria example is more recent and did not rear up in the

eye of the prisoner disenfranchisement storm, it illustrates itself nicely as a prime

symptom of euro-scepticism among the public, politicians, and the media in the

United Kingdom.

The ECHR is undoubtedly a living instrument, adapting organically to the ever

changing sphere of human rights. Dominic Raab, however, states that the ECHR is

now an old document, created at a different period of history and to reflect the needs,

fears and worries of that time.43 Much has changed in Europe and in legal expectation

during the past sixty years and this has arguably been reflected in public opinion. A

YouGov poll conducted in November 2012 found that 63% of respondents stated that

‘no prisoners should be allowed to vote at elections’, with only 9% in favour of

enfranchising ‘prisoners serving sentences of less than four years’.44 Evidently the

public regards the ECHR and the consequences of being a contracting party as out of

step with respectable expectations. Indeed, it is argued this lack of public respect for

43 Dominc Raab, ‘Strasbourg in the Dock: Prisoner Voting, Human Rights & the Case for Democracy’, Civitas: Institute for the Study of Civil Society London, April 201144 YouGov Poll, November 2012 <http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/lmlmhdqllh/YG-Archives-Pol-ST-results%20-%2023-251112.pdf>

21

such Convention obligations is of considerable concern to those in political positions

and goes some way to explaining the belligerent refusal of the UK to align its

domestic legislation appropriately to comply with the ECHR. When viewed in this

wider political context, the UK’s stubbornness in refusing to follow the judgement of

the ECtHR on the prisoner disenfranchisement issue is much more complex than a

moral, human rights question.

While this may go some way in helping to understand the tension felt between the UK

and the ECtHR, it does not offer guidance as to the nature of the UK’s justification for

the continued ban and if these are legitimate arguments for maintaining prisoners

locked out of democracy.

Chapter II – Justifications for Prisoner Disenfranchisement

22

2.1 History, Human Rights, and Penal Populism

Parliament’s stubborn stance can largely be attributed to historical legal theories

relating to the notion of ‘civic death’, the social contract theory, and a strong penal

populist movement that swept through British politics. From a moral and theoretical

perspective, successive governments have held the view that criminals, having

committed serious crimes warranting incarceration, lose the moral authority to vote.

The social contract theory and civic death are often championed by supporters of the

blanket ban. However, is it right to base such important public policy on tradition?

Jago and Marriott answer this question in the negative:

‘temporary disqualification from the franchise has little retributive value beyond

vindictiveness.’45

2.2 Civic Death

45 Robert Jago & Jane Marriott, ‘Citizenship or Civic Death? Extending the Franchise to Convicted Prisoners’, 5 WEB JCLI (2007)

23

The disenfranchisement of prisoners can be traced back to the Forfeiture Act 1870

and is linked to the idea of civic death. This notion has been used heavily as

justification for maintaining the blanket ban, even though it was described by the

Prison Reform Trust as ‘a relic from the nineteenth century.’46 In essence this notion

of civic death related to the removal of the right to vote in elections because of a

failure in civic responsibility due to having committed a crime.47 Thus, the conclusion

can be drawn that the relationship between the individual and that state is drastically

altered when an individual is convicted of an offence warranting imprisonment.

“Civic death” conjures Victorian imagery, with the expulsion from civil society an

integral part – convicts were essentially slaves to the state. The United Kingdom, of

course, has progressed from such times, yet a draconian notion remains a central

justification to prisoner disenfranchisement.

‘The much-maligned Forfeiture Act 1870 is regularly cited as the source of prisoner

disenfranchisement in English law.’48

The 1870 Act denied offenders their citizenship rights and stated that any person

convicted of treason or felony and given a prison sentence of more than twelve

months must lose their right to vote at parliamentary or local elections until they have

served their sentence.49 The Forfeiture Act 1870 was subsequently amended by the

Criminal Law Act 1967, and from here a specific provision was introduced in the

Representation of the People Act 1969 stating that convicted persons were legally

46 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR para. 5347 Alec C. Ewald and Brandon Rottinghaus, Criminal Disenfranchisement in an International Perspective, Cambridge University Press 2009, p. 21248 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 201249 Isobel White, ‘Prisoners’ voting rights - in brief’, House of Commons Library Standard Notes SN01764 15 January 2014

24

incapable of voting during the time they were incarcerated in a penal institution.50

Amendments have been made in the form of the Representation of the People Act

1983 and the Representation of the People Act 2000.

The historical roots of the civic death justification hold great importance for many,

who point to its unbroken electoral history to legitimise their stance.

‘the settled view of the British people, through their elected representatives in the

British Parliament, is that prisoners should not have the right to vote.’51

However, upon deeper analysis of this historical justification a different story is told.

Murray argues that:

‘Universal disenfranchisement of prisoners has not been an ever-present feature of

the UK’s electoral system over the last century.’52

There was much change to voting rules in post-World War Two Great Britain. In the

years from 1948 to 1969, all prisoners were enfranchised in some form or another.

The post – war Labour government introduced postal ballots under the Representation

of the People Act 1948.53 This legislation enfranchised prisoners who were no longer

resident at their qualifying address,54 meaning that prisoners who were incarcerated in

prisons outside their constituencies could vote by post. The Criminal Law Act 1967

facilitated the participation of prisoners incarcerated across the UK in Parliamentary 50 Representation of the People Act 1987 s.4 51 P. Hollobone, MP, HC Deb., vol. 523, col. 536, 10 February 2011.52 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 201253 Representation of the People Act 1948, s. 8(1)(e) 54 Ibid. s. 8(4)(b)

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by – elections and local government elections held between January 1968 and April

1969, regardless of the length of their sentence.55 This ended, however, and convicted

prisoners were once again disenfranchised under the Representation of the People Act

1969.56

‘Neither the current opponents nor proponents of prisoner enfranchisement have

appreciated that, for many prisoners, the nineteenth-century system of

disenfranchisement rested on judicial disapproval of prisoners voting rather than on

statutory disenfranchisement.’57

Upon analysing the Forfeiture Act 1870 and also by evaluating the electoral

arrangements in the United Kingdom from 1948 – 1969, it is obvious that the blanket

disenfranchisement of prisoners has not been a mainstay of history, and instead

arguments hinging on the blanket ban being an entrenched electoral norm can be

shown to be weak and lacking serious foundation.

Further adding to this argument’s weakness is an ironic paradox: the Forfeiture Act

1870 placed restrictions on the electoral liberty of convicted criminals serving a

sentence of twelve months or more in prison. It would be interesting to see how such

legislation, if still enacted, would be received by the ECtHR. Indeed it is argued that

due to the provision of disenfranchisement of prisoners serving a sentence of twelve

55 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 201356 Representation of the People Act 1969, s. 457 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 2012

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months or more, the legislation would be appropriately within the UK’s wide margin

of appreciation, and would thus satisfy Article 3 of Protocol 1 of the ECHR.

‘People are sent to prison to lose their liberty not their identity. The UK’s outdated

ban on sentenced prisoners voting, based on the 19th century concept of civic death,

has no place in a modern democracy and is legally and morally unsustainable.’58

It must also be remembered that there has been great progression in the penal system

– corporal punishment59 and the death penalty60 have been abolished, for example.

Such archaic and drastic measures have been consigned to the annals of history. Why,

then, should an outdated Victorian notion such as civic death have a place in a modern

progressive society? In my opinion, such justification is based around penal populism

and politicians appearing to be hard on crime; however, it may also have been due to

embarrassing political scandal such as convicted prisoner and IRA hunger striker

Bobby Sands being elected to Parliament.61 Regardless, it is clear to see that the civic

death justification has a number of weaknesses.

2.3 The Social Contract Theory

Having first discussed the notion of civic death and its use as justification of the

blanket ban, it is now appropriate to evaluate the social contract theory, which has

also been used to legitimise the position of the UK. The social contract theory, nearly

58 Juliet Lyon, Government Has Six Months To Overturn Prisoners’ Voting Ban, Prison Reform Trust 22nd May 2012 <http://www.prisonreformtrust.org.uk/ProjectsResearch/Citizenship//BarredfromVoting> accessed 31st October 201359 Criminal Justice Act 1967, s. 6560 Murder (Abolition of the Death Penalty) Act 196561 Due to a loophole in the RPA 1969 convicted prisoners were able to stand as a candidate for Parliament. Sands was a member of the Provisional Irish Republican Army serving a 14 year sentence for firearms possession. He was elected to Parliament at the height of his hunger strike and caused significant embarrassment to the British government of the day.

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as old as philosophy itself, proposes that there is an implied agreement between

individuals and the society to which they belong, in which they agree to follow the

norms and respect the laws of that society in exchange for the benefits to which being

part of that society brings.

‘Simply put, contractarian arguments for prisoner disenfranchisement proceed on the

basis that the commission of a crime constitutes an active and deliberate repudiation

of the terms of the social contract. The penalty of exclusion from the franchise thus

attaches to that act which signifies the criminal’s apparent desire no longer to be

considered a member of the state.’62

Such theory has received notable credence throughout history and is evident in the

ancient Platonic dialogue, Crito, where Socrates uses the social contract to illustrate

why he must remain in prison and face the death penalty.63 In Plato’s Republic, the

social contract theory is also represented, though looked upon less favourably.64 In

more recent history, the social contract theory has been advocated by philosophers

such as Thomas Hobbes,65 John Locke,66 and Jean-Jacques Rousseau.67 Indeed, the

theory has received much support from the world of academia and is regarded as a

sound philosophical theory regarding social justice.

62 Robert Jago & Jane Marriott, ‘Citizenship or Civic Death? Extending the Franchise to Convicted Prisoners’, 5 WEB JCLI (2007)63 Plato, Plato in Twelve Volumes, Vol. 1 translated by Harold North Fowler, Harvard University Press; London, William Heinemann Ltd. 196664 Plato, The Republic, translated by Benjamin Jowett, Dover Publications 200065 Thomas Hobbes, Leviathan, Oxford University Press 199666 John Locke, Second Treaties of Government, Barnes and Noble Books 2004 67 Jean-Jacques Rousseau, The Social Contract or The Principles of Political Right, 1762, Translated 1782 by G. D. H. Cole, Public Domain

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In the context of the blanket ban on prisoner voting in the UK, the theory can be

shown to advocate the stripping of the prisoner’s right to vote due to the prisoner’s

failure to uphold the terms of the social contract – i.e. not adhering to the law. Thus,

by adhering to the law and following the duties provisioned by the social contract, the

citizen shall receive certain benefits. What is clear is that in the sphere of prisoner

voting, the social contract theory implies that the vote is a privilege rather than a

fundamental human right. The theory has been an intrinsic part of the UK’s argument

for retaining the blanket ban:

‘Convicted prisoners had breached the social contract and so could be regarded as

(temporarily) forfeiting the right to take part in the government of the country.’68

The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill also point to the

use of the theory in a political and historical context in the UK:

‘This principle—that freedoms are enjoyed unless and until they are taken away by

Law – has deep roots in the common law and in our shared political and

constitutional history.’69

Is this a legitimate justification in the modern day for the removal of a cornerstone of

democracy? Easton states that:

68 Hirst v. the United Kingdom (no. 2) (Application no. 74025/01) [2005] ECHR para. 5069 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 2013

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‘The right to vote has been construed as a revocable privilege rather than a

fundamental right, despite nearly a century of universal suffrage. The Government

has generally favoured granting privileges awarded for good behaviour, rather than

rights, to prisoners, as privileges are not legally enforceable.’70

The vote being touted as a privilege was a constant in the 2011 debate on prisoner

disenfranchisement – David Davis stated that, ‘There is an important point about not

confusing the rights that are properly held by everybody who is a British citizen…with

those much more circumscribed rights that are given to prisoners,’71 with Jack Straw

articulating his view that, ‘the issue before us today – is by no stretch of the

imagination a breach of fundamental human rights. Rather it is a matter of penal

policy…’72

In modern society the right to vote is seen as a fundamental human right; to be

involved in the democratic process is a primary statement of equality and an

irrevocable civic status that all human beings possess. Further to this, prisoners – seen

as the lowest ebb of a population – have a fascinating role in society. By stating in

clear form the terms construed upon them the state is thus recognising the absolute

minimum obligation owed by itself to its citizens. Recognising the human rights of

prisoners represents, ‘a strategy to prevent the erosion of citizen claims against

government, to prevent regressions applied to the least popular of dependent

populations, which might thereafter be applied more broadly.’73

70 Susan Easton, ‘The prisoner’s right to vote and civic responsibility: Reaffirming the Social Contract?’ (2009) Probation Journal vol. 56 no.3 224-23771 D. Davis, MP, HC Deb., vol. 523, col. 493, 10 February 2011.72 J. Straw, MP, HC Deb., vol. 523, col. 502, 10 February 2011.73 M. Tonry, The Future of Imprisonment, Oxford University Press 2006, p. 177

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To cite the social contract theory as justification and thus the franchise as a privilege

in the face of progressive reform is dangerous and risks the UK’s reputation as a

nation that respects and promotes the universality of post Second World War human

rights. In my opinion it can be argued that with the advent of universally recognised

human rights weaknesses of the Social Contract theory became suddenly apparent.

With the signing of the ECHR, of which the UK was a key mover, the ‘ fundamental

and inalienable quality of individual human rights was affirmed’74 and through this

action there was a move away from negative civil liberties of which the Social

Contract theory is an inherent part, towards a more prescriptive system of rights.

There is also an inherent flaw in the Social Contract theory; in the context of prisoner

disenfranchisement it contradicts itself:

‘To argue that those who breach the ‘basic rules of society’ lose the right to vote is to

claim too much. Assuming that prohibitions on assaults, acts of vandalism and thefts

of personal property are among the basic rules of a democratic society, then these

basic rules are broken by all those who commit these offences, including many who

will not go to prison.’75

The use of the Social Contract theory and civic death appear to be somewhat of an

arbitrary justification for the blanket ban. There continued use could see the UK cast

aside as pariah – seen as a European and indeed global neglecter of fundamental

human rights by other contracting parties to the ECHR. 74 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 201375 Peter Ramsay, ‘Faking Democracy with Prisoners’ Voting Rights’, LSE Law, Society and Economy Working Papers 7/2013, London School of Economics and Political Science & Law Department.

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‘We didn’t just sign up to the European Convention on Human Rights – we more or

less wrote it. For us to fail to respect our international treaty obligations, over an

issue as relatively minor… would be a grossly disproportionate reaction. It would set

an appalling example to other nations and undermine human rights across Europe.’76

The UK’s commitment to enfranchising its citizens regardless of race, sex, colour,

and creed, subject to age tells a much different story of the UK’s view the right to

vote as a human right or a privilege. Prisoners remain citizens in many other ways

whilst they are incarcerated; they receive healthcare, food, shelter, the right to a fair

trial, religious beliefs are respected and accommodated for, they pay tax, and have to

adhere to the law. Grcic argues that the notion of civic death and the social contract

are only applied to win political points.77 Thus, it may be concluded that after analysis

of the historical justifications for the UK’s continued prisoner disenfranchisement,

serious flaws can be found in both the notion of ‘civic death’ and the Social Contract

theory.

76 The Telegraph, Prisoners including sex offenders should get vote, MPs and peers say, 18th December 2013 <http://www.telegraph.co.uk/news/politics/10524151/Prisoners-including-sex-offenders-should-get-vote-MPs-and-peers-say.html> accessed on 1st February 2014 77 Joseph Grcic, Facing Reality: An introduction to Philosophy, 2009, Bloomington: Author House p. 321

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2.4 Reform and Penal Populism

When looking at the 80, 000 population of convicted and incarcerated criminals, it is

apparent that many of them constitute the most disadvantaged members of society.

The prison population is largely made up of those that are illiterate, unemployed,

mentally ill, in financial hardship, or come from abusive background whether physical

or sexual.78 In my opinion it is these members of society that require our

compassionate regard and rehabilitative focus. The aim of punishment, and in

78 Prison Reform Trust, ‘Prison: The Facts’, Bromley Briefings Summer 2013 <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Prisonthefacts.pdf>

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particular incarceration, is to achieve justice for victims of crime and also enable the

offender to see the error of their ways and to prevent re-offending, thus achieving full

integration back into society. Easton argues that the enfranchisement of prisoners

would be incredibly beneficial to their rehabilitation by fostering links with society

and furthering the process of ‘normalisation’.79

‘Prison regimes should treat prisoners less as objects, done to by others, and more as

subjects who can become authors of their own reform and redemption. In that spirit,

the right to vote should be restored to sentenced prisoners.’80

It is clear that the right to vote should not be based on the moral character of a

criminal – it should be an absolute fundamental for all citizens in a modern society.

‘Denying prisoners the right to vote increases their social exclusion and marginalizes

prisoners, denying them the opportunity to put pressure on their MP. Re-

enfranchisement would arguably have the opposite effect, enhancing their citizen

status, giving them a voice and would also further their rehabilitation.’81

Enfranchisement of the prison population would also force politicians to take a more

active role in dealing with issues faced by prisoners, namely mental health, suicide,

education, and homelessness on release. Surely if these issues were dealt with then

recidivism rates would start to fall, as prisoners are better prepared for life outside of

prison and are ready to rejoin society.79 Susan Easton, ‘Electing the Electorate: The problem of Prisoner Disenfranchisement Cases’, (2006), 69 MLR 44380 Catholic Church. Bishops’ Conference of England and Wales, A Place of Redemption: A Christian Approach to Punishment and Prison, Bloomsbury Publishing 2004, p. 281 Susan Easton, ‘The prisoner’s right to vote and civic responsibility: Reaffirming the Social Contract?’ Probation Journal, 2009, 56: 224

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Do the reform options offered by the government address these issues? On 22nd

November 2012, the government of the UK published Voting Eligibility (Prisoners)

Draft Bill.82 The Draft Bill’s publication ensured that the UK had complied with the

deadline set by the ECtHR in the Scoppola judgement; the Draft Bill included three

proposals:

1) A ban from voting for prisoners sentenced to four year or more;

2) A ban from voting for prisoners sentenced to more than six months;

3) A ban for all convicted prisoners – i.e. a restatement of the status quo.83

It is argued that this is a positive step forward and offers a degree of forward

momentum to the abolition of the blanket ban. However, Foster argues that:

‘The first two options will inevitably lead to further challenges on the basis of

proportionality, but the latter option (retaining the status quo) will expose the

government to condemnation with respect to its attitude towards human rights and

threaten its (already brittle) relationship with the Council of Europe, European

Convention and the European Court of Human Rights.’84

However, one might be inclined to argue that the first two proposals set out above

would satisfy the ECtHR, due to the wide margin of appreciation set out in the

82 Draft Voting Eligibility (Prisoners) Bill available at <http://www.parliament.uk/business/committtees//committees-a-z/joint-select/draft-voting-eligibility-prisoners-bill/> 83 Ibid. 84 Steve Foster, ‘The prisoner’s right to vote and the Voting Eligibility(Prisoners) Draft Bill 2012’, 2013, Coventry Law Journal 131

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Scoppola85 judgement. It would have been preferable to add two more proposals that

would have given the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill

much greater scope to explore all avenues for reform of the blanket ban: (i) fully

enfranchising everyone serving a prison sentence; (ii) giving judges discretion

discretionary powers to decide upon disenfranchisement as part of a sentence

proportionate to a crime. The latter of these proposals has been adopted in a number

of Council of Europe countries such as France, Germany, and Belgium.86 With regard

to the former proposal, the UK strikes a lowly character along with Austria, Bulgaria,

Estonia, Georgia, Hungary, and Russia who all have blanket bans.87 The majority of

European countries do enfranchise their prisoners in some form or another – Ireland,

Sweden, Albania, Finland, Denmark, and Spain, to name but a few, involve those

incarcerated in the democratic process.88

Inclusion of these two extra proposals may have enabled a more holistic approach to

prisoner disenfranchisement as the Bill makes its way through the Houses. As shown

above with the examples provided, the proposals are not ludicrous in nature and are

shown to be prevalent amongst Council of Europe Member States. Such proposals

could also address the issue of reform and rehabilitation of incarcerated criminals.

85 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR86 Prison Reform Trust, ‘Prison Reform Trust Submission to the Joint Select Committee Consultation on the Draft Voting Eligibility (Prisoners) Bill’, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/PRT%20Submission%20Joint%20Committee%20Voting%20Eligibility%20(Prisoners)%20Draft%20Bill.pdf> accessed on 21st December 2013 87 ‘Prisoner votes by European Country’, BBC News, 22nd November 2012 <http://www.bbc.co.uk/news/uk-20447504> accessed on 15th November 2013 88 ‘Prisoner votes by European Country’, BBC News, 22nd November 2012 <http://www.bbc.co.uk/news/uk-20447504> accessed on 15th November 2013

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Such reform, however, still appears to be some way off. Penal policy has undoubtedly

been influenced by public mood and sentiment in order to achieve electoral success.89

Penal populism is still very prevalent; indeed David Cameron ditched the government

green paper ‘Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing

of Offenders’90 after the Guardian criticised it for being too soft on crime.91 Political

parties must appear to be tough on crime – until such thinking changes it is difficult to

see how reform of the blanket ban can be achieved. Once again the intertwined nature

of law and politics in the British legal order is demonstrated. This is further

compounded by the major underlying constitutional issues relating to ECtHR

impinging upon the democratic process of the UK and thus its Parliamentary

sovereignty.

Chapter III - The Broader Constitutional Context

3.1 Parliamentary Sovereignty

In recent years it has become apparent that judgements made by the ECtHR on

controversial topics are fanning the flames of the perception that it is usurping the

position and power of the UK’s democratically elected Parliament.92 This chapter sets

out to examine the broader constitutional relationship between the UK and the ECtHR

89 The Labour Party Election Leaflet, Do you want convicted murderers, rapists, and paedophiles to be given the vote? The Lib Dems do!, 2010 <http://www.electionleaflets.org/leaflets/1882/> accessed on 15th February 2014 90 Ministry of Justice, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, 2010 <http://www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf> accessed on 21st November 2013 91 Simon Jenkins, Cameron mugging Clarke was about fear of the tabloids, not consultation, The Guardian 23rd June 2011 <http://www.theguardian.com/commentisfree/2011/jun/23/penal-reform-tabloid-hysteria> accessed on 21st November 2013 92 BBC News, Lord Judge warns ECHR poses risk to parliamentary sovereignty, 28th December 2013 <http://www.bbc.co.uk/news/uk-25534115> accessed on 30th December 2013

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in the context of the prisoner disenfranchisement debate and achieve an adequate

answer to the sovereignty question. Parliamentary sovereignty may be defined as:

‘Parliament… has, under the English constitution, the right to make or

unmake any law whatever: and, further, that no person or body is recognised

by the law of England as having a right to override or set aside the legislation

of Parliament.’93

Thus, it can be argued that Parliament is the supreme legal authority in the UK, which

can create or revoke any law. Indeed the judiciary cannot overrule Parliament’s

legislation and no Parliament can bind its successor – Parliament’s sovereignty is a

fundamental component of the UK’s un-codified constitution. However, in recent

years there have been developments that complicate the concept of Parliamentary

sovereignty. Parliament has passed legislation that limits the scope of its sovereignty

– these laws reflect both domestic and international political developments. Examples

of such laws include devolving powers to the Scottish Parliament and the Welsh

Assembly, the UK’s entry into the EU with the European Communities Act 1972 and

the corresponding Factortame case,94 the establishment of the Supreme Court in 2009

which ended the House of Lords’ function as the UK’s highest court of appeal and, of

course, the Human Rights Act 1998 and the European Convention on Human Rights.

‘Both EU membership and ratification of the ECHR have exerted a massive impact on

the UK legal system.’95

93 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Elibron Classics 200094 R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL95 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1

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The enacting of such legislation towards the end of the twentieth century has

undoubtedly put a strain on the Diceyan concept of Parliamentary sovereignty. This

strain has been wholly evident in the prisoner disenfranchisement saga, the rhetoric of

politicians and several Justices of the Supreme Court,96 and of course the recent case

of Vinter v. the United Kingdom.97 There now appears to be a status quo that is quite

different to Dicey’s constitutional theory, and thus there is a need for qualification on

sovereignty due to the numerous international treaties that the UK now finds itself

party to.

‘Parliament's position changed on January 1, 1973 when the United Kingdom became

a member of the European Communities--now the European Union. It is clear, as the

courts recognise, that, while the United Kingdom is a member of the European Union,

the sovereignty of Parliament has been limited.’98

Johnson also argues that there has been much change in this area, mainly due to the

increasing number of constitutionally significant and internationally binding legal

obligations that the UK has willingly entered into.99 In the case of prisoner

disenfranchisement, it is crucial to contextualise the blanket ban against the

development of the ECtHR: ‘the Court has interpreted the Convention in such a way

as to allow it to intervene in areas which were not anticipated by those who drafted

96 Discussion on the role of the Supreme Court and Parliamentary sovereignty has been evident in recent lectures given by Lord Sumption, Lord Judge, and Lady Hale. 97 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) – I shall not focus too greatly on the life-term without parole issue as this dissertation is wholly concerned with prisoner disenfranchisement. However, whole life-terms do provide another important angle to the sovereignty debate. 98 Jack Beatson, ‘Reforming an unwritten constitution’, Law Quarterly Review vol. 126 48, 201099 Nevil Johnson, Reshaping the British Constitution: Essays in Political Interpretations, Palgrave Macmillan, July 2004

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the Convention in the late 1940s.’100 However, where an ECtHR judgement flies in

the face of domestic legislation, politics, and public opinion – the implementation of

that judgement will be of the utmost difficulty. The implementation of the Hirst and

Vinter rulings (or lack thereof) illustrates this exceptionally well.

The Parliamentary sovereignty debate has also been very relevant to the whole life

term cases involving Vinter and McLoughlin and Newell.101 In the Vinter case the

Grand Chamber held that there must be a review mechanism of whole-life terms

without parole, otherwise there is a breach of Article 3 of the ECHR.102 However, in

the McLoughlin and Newell case the Court of Appeal held that the whole-life tariff

regime as provisioned for in domestic legislation is compatible with Article 3.103

3.2 The ECHR as a ‘Living Instrument’

Clearly evidenced through the jurisprudence of ECtHR is the court marking the

ECHR as a ‘living instrument’ that is to be interpreted in light of evolving

circumstances.104 Letsas defines the key features that make up the ‘living instrument’:

‘In the hands of the European Court of Human Rights, the idea of a living instrument

has three main features. First, the Court will take into consideration ‘present-day

standards’ as an important factor in interpreting the Convention... Second, the

100 Prison Reform Trust, ‘Prison Reform Trust Submission to the Joint Select Committee Consultation on the Draft Voting Eligibility (Prisoners) Bill’, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/PRT%20Submission%20Joint%20Committee%20Voting%20Eligibility%20(Prisoners)%20Draft%20Bill.pdf> accessed on 21st December 2013101 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188102 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) para. 130103 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188 para. 29104 Tyrer v. The United Kingdom 2 EHRR 1 (25th April 1987) para. 31; Kress v. France 39594/98 para. 70; Goodwin v. The United Kingdom 28957/95 para 75

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present-day standards that the Court takes into consideration must somehow be

common or shared amongst contracting states… Third, the Court will not assign

decisive importance to what the respondent state (be it its authorities or public

opinion) considers to be an acceptable standard in the case at hand.’105

It has been argued that the ‘living instrument’ interpretation of the Convention allows

for plenty of scope for judicial activism and has attracted criticism.106 Critics have

argued that this doctrine can enable the creation of new rights that can interfere with

parliamentary sovereignty and democratic accountability. In my opinion, the prisoner

disenfranchisement debate highlights the unease of the British judiciary and

politicians towards this interpretation of the Convention. It is clear that the

Convention can at times expand at a greater rate than domestic laws, and thus the

ECtHR is at the forefront of laying down progressive human rights judgements that

mark the minimum standard of what contracting parties must attain. In the context of

prisoner disenfranchisement, political and public opinion is firmly opposed to the

ECtHR judgements in this area and this has meant little pressure has been exerted on

the executive and legislature to introduce reform. Thus, it is argued that the ECtHR is

out of step with British opinion and ideals; this has resulted in the UK departing from

the notion of the Convention as a living instrument, as the Court is seen to be out of

sync with modern societal and cultural change. However, Sir Nicolas Bratza states:

105 Geir Ulfstein, Andreas Follesdal, and Birgit Peters, Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press (2013), p. 107106 The Rt. Hon. The Baroness Hale of Richmond, ‘Beanstalk or Living Instrument?How Tall Can the ECHR Grow?’, Barnard’s Inn Reading, 16th June 2011 <http://www.supremecourt.uk/docs/speech_110616.pdf> accessed on 24th November 2013; The RT. Hon. The Lord Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19th March 2009 <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_2009_JBS_Annual_Lecture_Universality_of_Human_Rights.pdf>

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‘I also believe that the Court has generally been faithful to its claim that its

development of the Convention has been incremental and evolutionary rather than

revolutionary.’107

Ultimately the question of legitimacy is inherently intertwined with the reassertion of

parliamentary sovereignty by British politicians, judiciary, and media. If contracting

parties look upon ECtHR judgements as being irrelevant to cultural and societal

opinion, then these judgements have a greatly reduced degree of legitimacy than if

judgements are made in line with such opinion. The prisoner disenfranchisement issue

and the more recent life-term without parole issue are indicative of this.

Undoubtedly this is a difficult issue to address given the large number of contracting

parties to the Convention,108 however, ECtHR have widened the margin of

appreciation sufficiently as shown in the Scoppola judgement, and the core aim of the

Convention must not be forgotten when analysing this issue; the promotion of Council

goals and not the singular domestic aims of the contracting parties.

‘The Court treated the ECHR as a living instrument, nourishing it to become a large

and fairly consistent body of rights-based principles for the whole of Europe.

Strasbourg’s interpretive ethic is a unique asset for Europe and the best example of a

successful international system for protecting human rights. If the Court continues to

107 Sir Nicolas Bratza, ‘Living instrument or dead letter – the future of the European Convention on Human Rights’, (2014) 2 E.H.R.L.R. 116108 47 countries are contracting parties to the ECHR <http://hub.coe.int/web/coe-portal/what-we-do/human-rights/european-convention?dynLink=true&layoutId=20&dlgroupId=10226&fromArticleId = >

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treat the Convention as a living instrument it will not lose its legitimacy; it will lose

its legitimacy if it doesn’t.’109

The ECHR is concerned with universality,110 and it is important that this is not

departed from in order to appease singular contracting parties. The living nature of the

Convention has been crucial to its progression. However, this interpretation of the

Convention has seen a clash with the Diceyan notion of sovereignty over politically

sensitive ECtHR decisions; this may have led to a conscious reassertion of

Parliamentary sovereignty by the three prongs of UK power.

3.3 A Conscious Reassertion of Parliamentary Sovereignty?

Throughout the debate on prisoner disenfranchisement, it has been wholly evident that

there has been a violation of Article 3 of Protocol 1 of the ECHR. However, the

resistance shown to remedying the accepted on-going breach has been ferocious. With

the issue of the blanket ban, it is clear that the executive and legislature hold the

Representation of the People Act 1985 in much higher regard than their treaty

obligation to adhere to the ECHR under the Human Rights Act 1998.111 As discussed

in the previous chapter, one does not feel this is due to strong justification in historical

arguments on the blanket ban – instead it is argued that these historical justifications 109 Geir Ulfstein, Andreas Follesdal, and Birgit Peters, Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press (2013), p. 131110 European Convention on Human Rights Preamble <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed on 18th November 2013 111 Hereinafter referred to as the ‘HRA’

43

are being used to disguise a wider constitutional movement of a reassertion of

Parliamentary sovereignty against international treaty obligations. Such a reassertion

is not only evident in the scope of the prisoner disenfranchisement debate, but also in

the rhetoric of Justices of the Supreme Court, the issue of life-terms without parole,

and also the parliamentary chamber. It now appears that where a judgement from the

ECtHR runs against domestic legislation or politics, that judgement will be

increasingly difficult to implement. What is wholly clear is that the issue in play is not

the Convention itself, it is sovereignty.

Even before his appointment to the Supreme Court, Lord Sumption was discussing

the tension felt between Parliament and its international treaty obligations, namely the

ECHR and the HRA.

‘parliamentary scrutiny is generally perfectly adequate for the purpose of protecting

the public interest in the area of policy-making. It is also the only way of doing so that

carries any democratic legitimacy.’112

Such sentiment has been echoed in cases where the issue of rights and the ECHR have

been of vital importance. Lord Rodgers showed his concern at the lack of democratic

legitimacy in Strasbourg judge-made law:

112 J. Sumption, ‘Judicial and Political Decision Making: The Uncertain Boundary’, The F. A. Mann Lecture, 2011, p. 18 <http://www.theguardian.com/law/interactive/2011/nov/09/jonathan-sumption-speech-politicisation-judges> accessed on 10th December 2013

44

‘Even though we are dealing with rights under a United Kingdom statute, in reality,

we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken,

the case is closed.’113

In recent times such concern over the perceived judicial activism of the Strasbourg

court has attracted heavy bombardment from the judiciary and executive alike. Lord

Sumption again launched an attack on the Convention and the ECtHR in his lecture

on the ‘Limits of Law’:

‘The Convention, and its judicial apparatus of enforcement, are only necessary in

order to impose changes for which there is no democratic mandate. It is a constraint

on the democratic process… the moment that one moves beyond cases of real

oppression and beyond the truly fundamental, one leaves the realm of consensus

behind and enters that of legitimate political debate where issues ought to be resolved

politically.’114

Lord Sumption may perhaps be the judicial embodiment of the agitation of both

political and public opinion that has been felt throughout the prisoner

disenfranchisement saga. Such judicial unease and criticism, coupled with a lack of

movement to remedy the blanket ban can, in my opinion, be attributed to an attempted

reassertion of parliamentary sovereignty and the UK’s democratic process. Lord

Judge has also voiced his opinion on the debate:

113 SSHD v. AF and Others [2009] UKHL 28, para 98114The Rt. Hon Lord Sumption, ‘Limits of Law’, The 27th Sultan Azlan Lecture, Kuala Lumpur, 20th November 2013, <http://www.supremecourt.uk/docs/speech-131120.pdf> accessed on 2nd December 2013

45

‘In my view, the Strasbourg Court is not superior to our Supreme Court. It is not, and

it is important to emphasise, that it has never been granted the kind of authority

granted to the Supreme Court in the United States of America, authority, let it be

emphasised, which is well established in the constitutional arrangements of that

country. Nevertheless, although not in any sense a Supreme Court of Europe, which, I

repeat, does not consist of a federation of states as the United States of America does,

by using the concept of a “living instrument”, the Court appears to be assuming, or

seeking to assume the same mantle.’115

This rhetoric has shown its substance in the lack of legislative movement to reform

the blanket ban. It is argued this may be attributed to a reassertion of parliamentary

sovereignty; such rhetoric demonstrates conscious confrontation of the Strasbourg

court and an attempt to stand-up to the perceived democratic deficit.

‘The dissent stressed the importance of the Court not infringing upon the Contracting

Parties’ sovereignty and leaving room for a divergence in European practices.’116

The seniority of these legal figures combined with the ferocity of their attack on

ECtHR do, in my opinion, highlight this reassertion. The senior judiciary is, in

essence, firing a warning shot at Strasbourg – protecting the democratic process of

Parliament through their rhetoric.

115 The Rt. Hon Lord Judge, ‘Constitutional Change: Unfinished Business’, University College London, 4th December 2013,< http://www.ucl.ac.uk/constitution-unit/constitution-unit-news/constitution-unit/research/judicial-independence/lordjudgelecture041213/> accessed on 5th December 2013 116 William Ashby Powers, ‘Hirst v. United Kingdom (No. 2): A first look at Prisoner Disenfranchisement by the European Court of Human Rights’, Connecticut Journal of International Law, Vol. 21. No. 30 2006

46

‘recent attacks on the Strasbourg Court and the UK’s ongoing unwillingness to give

effect to the judgment show that the authority of pan-European standards is not

universally accepted.’117

The House of Commons debate on 10th February 2011 also pointed to a reassertion of

Parliamentary sovereignty. As discussed in Chapter I, the vote was a landslide in

favour of maintaining the blanket ban. Nicol considers the tone of the debate:

‘A denial of prisoner voting was by no stretch of the imagination a breach of

fundamental human rights but a matter of penal policy. By such interventions the

ECtHR was setting itself up as a supreme court of Europe with an ever-widening

remit, but with no opportunity for democratic override.’118

Recently, Justice Secretary Chris Grayling has also been openly critical of ECtHR in

the press,119 and a key element of the Conservative Party’s manifesto will undoubtedly

be curbing the influence of the ECtHR and the EU. The Conservatives are engaging

with public opposition to the perceived erosion of British national sovereignty by

those in Brussels and Strasbourg.120

The judiciary can also been seen to have consciously reasserted the sovereignty issue

in three recent cases. First concerning prisoner disenfranchisement was the case of

117 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1 118 Danny Nicol, ‘Legitimacy of the Commons debate on prisoner voting’, P.L. 681, 683 (2011)119 BBC News, Spielmann: UK leaving ECHR would be a ‘political disaster’, 14th January 2014 <http://www.bbc.co.uk/news/uk-politics-25729321> accessed on 5th February 2014 120 The Telegraph, Chris Grayling: Senior judges back me over human rights reforms, 26th March 2014 <http://www.telegraph.co.uk/news/politics/conservative/10724404/Chris-Grayling-Senior-judges-back-me-over-human-rights-reforms.html> accessed on 5th April 2014

47

Chester and McGeoch.121 The case dealt with the blanket ban in ECHR and EU law,

with the Supreme Court dismissing the appeal in respect of EU law. There was no

change as to the ECtHR ruling laid down in Hirst, with Lord Mance rejecting the

Attorney General’s invitation to refuse to apply the Hirst principles.122 Lord Mance

highlighted the limited role of the judiciary in remedying the issue:

‘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.’123

This debate has also been highly pertinent to the whole life term cases involving

Vinter and McLoughlin and Newell.124 In the Vinter case the Grand Chamber held that

there must be a review mechanism of whole-life terms without parole, otherwise there

is a breach of Article 3 of the ECHR.125 However, in the McLoughlin and Newell case

the Court of Appeal held that the whole-life tariff regime as provisioned for in

domestic legislation is compatible with Article 3.126

Indeed it is argued that such judgements given by firstly the Supreme Court and

latterly by the Court of Appeal can largely be attributed to a reassertion of

121 Chester v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 122 Ibid para 34123 Chester v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 para 42124 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188125 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) para. 130126 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188 para. 29

48

parliamentary sovereignty and thus a protection of the Rule of Law. The Courts are

protecting the separation of powers by not delving into politically controversial areas,

respecting the opinion of the democratically elected legislature, and thus refraining

from judicial activism.

3.4 Is there a Democratic Deficit?

Even though there is great consternation within the UK over the perceived democratic

deficit of ECtHR judgements, it must be remembered that the parliamentary

sovereignty debate only rears its head when judgements conflict with the UK’s

viewpoint. Generally ECtHR judgements finding a violation against the UK are few

and far between. This argument is reinforced when evidenced against the statistics of

the Court.

49

Figure 1127

As can be seen, 2,519 applications were made against the UK in 2013 with only 5

being declared admissible. In the same year the Court decided 1,652 cases lodged

against the UK; of these cases a violation was found in only 10 of the applications,

constituting 0.61% of all cases.128 Misrepresentation of such statistics is commonplace

in British media paints a damning picture of the ECtHR,129 but what is the reality of

the issue?

127 Analysis of Statistics 2013 – Council of Europe <http://www.echr.coe.int/Documents/Stats_analysis_2013_ENG.pdf> accessed on 1st February 2014128 European Court of Human Rights – UK Case-load 2013 <http://adam1cor.files.wordpress.com/2014/01/4652928-v1-uk-statistics-for-2013-january-2014-pdf-updated-on-30-01.pdf> accessed on 15th January 2014 129 The Daily Mail ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’ <http://www.dailymail.co.uk/news/article-2085420/Europes-war-British-justice-UK-loses-human-rights-cases-damning-report-reveals.html> accessed on 2nd February 2014

50

The statistics tell a much different story to that told by politicians and media.130 It is

clear that the Court can interfere in domestic matters such as the prisoner

disenfranchisement issue. However, in reality the Strasbourg Court can do very little

to enforce domestic implementation of its judgements and thus the sovereignty of

Parliament is not impinged. The Court may make a decision that is not in line with

domestic policy and political and public opinion, however, the implementation of that

decision must be executed domestically by the contravening contracting party. As is

illustrated by the prisoner disenfranchisement issue, implementation of an ECtHR

judgement can be an extremely protracted process, with little movement from the

domestic legislature. Indeed it has been almost nine years since the Hirst judgement

and only now are we seeing forward momentum on the issue.

The government has been stubborn in its duty to implement; this is understandable

given the lack of pressure for reform from Parliament and their need to satisfy the

desires of the British electorate. This highlights the clash between the Convention as a

‘living instrument’ and British legal and political norms. Within this clash it can be

concluded that there is no attack on parliamentary sovereignty, as when the prisoner

disenfranchisement issue is looked at in the context of ECHR cases against the UK it

is abundantly clear that controversy can only be found in a miniscule percentage.

‘What is ‘constitutional’ ultimately becomes a political question, the answer to which

can shift as the ‘deep’ political culture of the country alters over time… the UK

130 Michelle Lafferty, ‘The Strasbourg Court and the UK: dispelling the myths’, Edinburgh Law Review 136, 2014

51

constitution exists in a permanent state of flux and transition: it remains a continuous

work in progress, which is constantly undergoing revision, renewal and repair.’131

What the prisoner disenfranchisement issue does evidence, however, is the intimate

relationship shared by politics and law in the British legal system – shaped, coiled,

and intertwined within one another and unable to be prised apart due to our ever

evolving un-codified constitution.

Conclusion

I have attempted to evaluate the issue of prisoner disenfranchisement and how this

illustrates the relationship between the United Kingdom and the European Court of

Human Rights. It is abundantly clear that prisoner disenfranchisement is a complex

issue, drawing academic commentary on the many legal intricacies it entails. It is

131 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1

52

evident that the relationship between the UK and ECtHR is vitally important to the

protection and progression of human rights. The UK, as a strong supporter of such

rights, is crucial to their continued universal progression.

Upon conclusion of Chapter I of this dissertation it is evident that ECtHR have

produced consistent judgements on the issue of prisoner disenfranchisement; this has

been illustrated through the Hirst, Greens & M.T., and Scoppola judgements. What

has also been evident is the belligerent stubbornness of the UK to undertaking reform

in this area. I have attempted to illustrate that this is due to tension which can be seen

on two tiers. The first tier refers to a “shallow” tension that emanates from political

pandering to public opinion and the press. Indeed this tension is fed out of fear that

action could bring dire political consequences for the executive. This is the first part

of the prisoner disenfranchisement debate which evidences the inherently linked

nature of law and politics in the British legal system.

In Chapter II of this dissertation, it becomes apparent that the historical justifications

used by the UK contain many inherent weaknesses. As such the notion of “civic

death” and the social-contract theory are found to be weak justifications for

continuation of the ban.

‘The current ahistorical debate regarding prisoner enfranchisement in the UK, which

has ignored the electoral activity of sections of the prison population in the middle of

the twentieth century, has allowed the opponents of enfranchisement to portray the

ban on prisoners voting as a long-established feature of democracy in the UK, placed

in jeopardy by a ‘foreign’ court.’132

132 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 2012

53

It is argued that there must be a move away from such justifications in order to

improve the reform and rehabilitation of prisoners. However, it is clear that currently

this is a difficult if not impossible task given the penal populist movement that has

found a foothold in British politics. Again the issue of prisoner disenfranchisement

highlights the intrinsic nature of political influence in our legal system. This

conclusion leads me to argue that the inclusion of two more proposals in the Voting

Eligibility (Prisoners) Draft Bill: (i) fully enfranchising everyone serving a prison

sentence; (ii) giving judges discretionary powers to decide upon disenfranchisement

as part of a sentence proportionate to a crime. In my opinion these additions would

allow for much greater scope for reform.

Chapter III illustrates the broader constitutional debate surrounding prisoner

disenfranchisement. It is necessary to draw on ECtHR judgements outwith the scope

of the blanket ban in order to illustrate the perceived impingement of parliamentary

sovereignty by the Strasbourg court on politically controversial domestic policy. The

life-term without parole issue evidences the wider constitutional debate regarding the

UK and Strasbourg relationship. There has been a conscious reassertion of

parliamentary sovereignty by the British judiciary, legislature, and executive in

response to a democratic deficit in Strasbourg. However, upon analysis of ECtHR

case statistics it becomes abundantly clear that such a reassertion is misplaced and to

the contrary the UK and ECtHR share a successful relationship. It is clear, however,

that there are problems concerning the implementation of politically contentious

judgements.

54

The issue of prisoner disenfranchisement is particularly complex. I argue that this

issue offers a fascinating perspective of the UK and it relationship with Strasbourg.

This ultimately shows the inextricably intertwined nature of law and politics in the

British legal system – a position that is largely unique in the Council of Europe

contracting parties due to the constantly evolving and organic nature of our un-

codified constitution.

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55

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