Convicted prisoners to get vote by next election

The House of Lords and House of Commons Joint Committee on Human Rights has just published its 16th Report of Session 2006-2007 entitled Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights (HL Paper 128, HC 728).

The following are extracts taken from the Report:

(2) PRISONER VOTING

67. In Hirst v UK, the Grand Chamber of the ECtHR noted that the current blanket ban on prisoners voting in the UK applied to a wide range of offenders, and did so in a way which was indiscriminate, applying irrespective of the length of sentence, gravity of the offence or individual circumstances. The general, automatic and indiscriminate nature of the ban fell outside the State's margin of appreciation and was incompatible with the right in Article 3, Protocol 1 ECHR.

68. On 2 February 2006, the Secretary of State for Constitutional Affairs announced that a consultation document on the implementation of the Hirst judgment was in preparation and would, he hoped, be available in a "few weeks time". We welcomed the announcement of this consultation in our last Report. Mr Hirst wrote to us in 19 June 2006 highlighting the delayed introduction of the consultation paper and expressing dissatisfaction at the Government's dilatoriness in this matter.[62]

69. The DCA finally published their consultation paper on the Voting Rights of Convicted Prisoners on 14 December 2006.[63] The Government envisages that this consultation - which is presented as "Stage 1" - will be followed by a further "Stage 2" process involving proposals for legislation and a Partial Regulatory Impact Assessment. Stage 1 of the consultation process "sets out the principles behind the arguments for and against convicted prisoners retaining the right to vote whilst they are detained in prison, and aims to ascertain whether any form of enfranchisement should be taken forward". When the consultation paper was published, it was clear that any necessary reforms would not be in place in time for the Northern Irish Assembly elections in March 2007 and the Scottish Parliament, National Assembly for Wales, and local government elections in England and Scotland in May 2007.

70. In the Consultation Paper, the Government expressed its "firm belief" that "individuals who have committed an offence serious enough to warrant a term of imprisonment, should not be able to vote while in prison" and the consultation does not offer total enfranchisement of all prisoners as an option for change. It asked respondents to comment on retaining total disenfranchisement, despite this being the only option that the Government accepts is incompatible with the judgment of the Grand Chamber.[64]

71. In January, we wrote to the Lord Chancellor to ask for further information on the significant delay involved in the launch of the consultation process; for a timetable for the completion of the consultation stage and justification of the decision to hold a two-stage consultation process; the Government's reasons for consulting on the maintenance of a total ban in light of the ECtHR ruling and for refusing to consult on lifting the existing ban entirely.[65]

72. While we were waiting for the Government's response, the Court of Session sitting as the Registration Appeal Court Scotland made a declaration of incompatibility in respect of section 3 of the Representation of the People Act 1983, concluding that, in light of the judgment in Hirst v UK, the then forthcoming elections for the Scottish Parliament would "take place in a manner which was not "Convention-compliant".[66] We wrote to the Lord Chancellor to ask whether the Government agreed there was a need for urgent action to remedy the incompatibility identified in Hirst and to ask whether the Government had considered using the Remedial Order procedure to provide a remedy.[67]

73. On 2 March 2007, the Court of Appeal of Northern Ireland refused to make a declaration of incompatibility in similar terms.[68] In April 2007, the Joint Committee on Statutory Instruments considered the terms of the draft Scottish Parliament (Elections etc) Order 2007. An Explanatory Memorandum was presented with this Order, in which, the relevant Minister explained that he could not certify that the proposals were compatible with the Convention, as a result of Hirst. That Committee drew this incompatibility to the attention of both Houses, as an "unusual and unexpected use of powers". [69]

74. The Lord Chancellor replied to our letters on Hirst and the Court of Session declaration of incompatibility on 27 March 2007, some time after the Government consultation closed. The Lord Chancellor repeated the Government's view that prisoner enfranchisement is a "complex and difficult issue" with "considerable opponents". The new timetable for the implementation of the judgment in Hirst v UK expects Stage 2 of the consultation process to begin in July 2007. A legislative solution is not expected until at least May 2008.[70]

75. The Lord Chancellor explained that the consultation paper invites views from people who consider that it is "right in principle" that prisoners should remain disenfranchised, "in order that they can be taken into account in considering the extent of any future reform". The Lord Chancellor accepts that retaining the blanket ban is not an option. The Government has excluded the option of "full enfranchisement" from the options for change "so as to clearly indicate that it is not an option for reform that we would feel able to adopt".

76. Liberty are concerned that the consultation paper proposes only minor reforms and explicitly rules out full enfranchisement as an option. They consider that the Government's consultation "seems designed to do little more than ensure that…the UK's approach would be considered to be within its 'margin of appreciation'".[71]

77. We acknowledge that many people will question why prisoners should be entitled to vote in elections and that the Government would be taking a generally unpopular course if it were to enfranchise even a small proportion of the prison population. Nevertheless, the current blanket ban on the enfranchisement of prisoners is incompatible with the UK's obligations under the European Convention and must be dealt with.

78. We consider that the time taken to publish the Government's consultation paper and the time proposed for consultation is disproportionate. While the issues involved give rise to political controversy, they are not legally complex. The continued failure to remove the blanket ban, enfranchising at least part of the prison population, is clearly unlawful. It is also a matter for regret that the Government should seek views on retaining the current blanket ban, thereby raising expectations that this could be achieved, when in fact, this is the one option explicitly ruled out by the European Court.

79. We recommend that the Government bring forward a solution as soon as possible, preferably in the form of an urgent Remedial Order. We strongly recommend that the Government publish a draft Remedial Order as part of its second stage of consultation. We would be disappointed if a legislative solution were not in force in adequate time to allow the necessary preparations to be made for the next general election.

APPENDIX 5: LETTER DATED 23 JANUARY 2007 TO THE RT HON. LORD FALCONER OF THOROTON QC, SECRETARY OF STATE AND LORD CHANCELLOR, DEPARTMENT FOR CONSTITUTIONAL AFFAIRS

Hirst v UK

The Department for Constitutional Affairs published their consultation paper on the Voting Rights of Convicted Prisoners on 14 December 2006, over ten months after the Secretary of State for Constitutional Affairs indicated that he hoped it would be available. The information provided to the Committee of Ministers for their meeting on 17-18 October 2006 indicated that draft legislation expected in October 2007. This appears unrealistic in light of the new timetable of the proposed consultation. Although there is no new timetable presented in the DCA consultation document, this consultation will close on 7 March 2007. This consultation - which is presented as "Stage 1" - will be followed by a further "Stage 2" process involving proposals for legislation. It appears that the Government expects this consultation process to last for a significant time. The necessary reforms will not be in place in time for the Northern Irish Assembly elections in March 2007; Scottish Parliament elections; National Assembly in Wales; and local government elections in England and Scotland, all expected in May 2007.

The Consultation Paper clearly expresses the Government's "firm belief" that "individuals who have committed an offence serious enough to warrant a term of imprisonment, should not be able to vote while in prison (Foreword by the Lord Chancellor). We note that the Government have concluded that the judgment in Hirst v UK "did not conclude that the UK must enfranchise all prisoners". As a result, the consultation does not offer total enfranchisement of all prisoners as an option for change. However, we note that the Consultation Paper invites respondents to comment on retaining total disenfranchisement, despite this being the only option which the Government accepts is incompatible with the judgment of the Grand Chamber (paras 57-58, DCA Consultation Paper).

I would be grateful if you could tell us:

a) why there has been such a significant delay in the launch of this consultation process;

b) why, given the significant number of forthcoming elections, the Government considers that it is appropriate to conduct a two stage consultation process;

c) what is the proposed timetable for Stage 2 of the consultation;

d) what are the Government's reasons for consulting on maintaining the blanket ban on voting for all prisoners, which was found to breach the ECHR by the European Court of Human Rights;

e) what are the Government's reasons for excluding from the options for change any prospect of full enfranchisement.

We would be grateful for a fuller explanation of the Government's views than those provided in the Consultation Paper.

APPENDIX 11: LETTER DATED 16 JUNE 2006 FROM JOHN HIRST, RE HIRST V UK (NO.2)

I note that that your remit excludes consideration of individual cases. However, given that these cases concern the individual versus the State, in my view, this anomaly needs to be rectified if you are to be effective as a watchdog.

I note the powers of The Committee; I also note that they have not been used to their full extent in my case. For example, in para 52 of the 13th Report, it states that The Committee "wrote to the DCA to inquire about implementation measures following this case as part of its scrutiny of the Electoral Administration Bill. Subsequently, in a written statement of 2 February 2006, the Secretary of State for Constitutional Affairs stated that:

The ECtHR indicated that there should be proper debate about those issues and I have therefore concluded that the best way forward would be to embark on full public consultation in which all the options can be examined and which will give everyone the opportunity to have their say. A consultation document is therefore in preparation and I hope it will be available for discussion in a few weeks time. Thereafter there will be a period for Those with an interest to make their views known, which will help to inform the development of future policy.

In our report on the Electoral Administration Bill, we expressed regret that Parliament had not afforded the opportunity to consider the important issue of prisoner voting rights in the course of scrutiny of that Bill. We nevertheless welcomed the consultation exercise proposed. We intend to return to consider the proposals for reform of the law arising from the consultation process.

During the preparation for this case my research discovered that there had been no Parliamentary debate on the issue of prisoner voting rights. This fact was mentioned in my argument to the ECtHR. The Court accepted this point. I won this point. The UK lost this point. At para 79 of the Grand Chamber's judgment it states:

"...it cannot be said that there was any substantive debate by members of the legislature on the continued justification in the 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".

The Court did not say, Charles Falconer, Lord Chancellor, we indicate that you should now go and start talks about talks. The UK's obligation to the Convention is to amend the existing laws which led to the violation in human rights. This delaying tactic used by the DCA is unacceptable. See for example, Ireland's passing of a Bill to legislate to allow all prisoners the postal vote.

The Court used the principle of universal suffrage as it's starting point. The Suffragette Movement's motto became "Deeds not words", when Parliament sought to deny women the vote by offering to talk about the subject rather than pass a law to implement it. I echo this with mine, action not words.

I trust that you will now use your teeth, and stop wagging your tail.

APPENDIX 13: LETTER DATED 27 MARCH FROM THE RT HON LORD FALCONER OF THOROTON QC, SECRETARY OF STATE AND LORD CHANCELLOR, DEPARTMENT FOR CONSTITUTIONAL AFFAIRS, RE IMPLEMENTATION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS, HUMAN RIGHTS ACT: DECLARATIONS OF INCOMPATIBILITY, WILLIAM SCOTT V ELECTORAL REGISTRATION OFFICER

1. Thank you for your letters of 23 January and 2 February regarding the judgment of the European Court of Human Rights in Hirst v UK and the declaration of incompatibility made in William Scott v Electoral Registration Office. I also take this opportunity to include details of an application for judicial review brought by two prisoners in Northern Ireland.

Hirst v UK (App. No. 74025/01)

a) Why there has been such a significant delay in the launch of this consultation process?

2. Prisoner enfranchisement is a complex and difficult issue. It also has considerable opponents. There are a number of potential options that could be pursued as a result of the Grand Chamber judgment, and the Government needed to consider these carefully before publishing the consultation paper.

b) Why, given the significant number of forthcoming elections, the government considers that it is appropriate to run a two stage consultation process?

3. The current consultation document focuses on the principles of prisoners voting, and the options available to the UK following the European Court of Human Right's judgment in Hirst. As I stated in my foreword to the consultation, the second stage consultation is to consider how any changes might work in practice, which is a separate issue and will be based on the results of the first stage document.

c) What is the proposed timetable for stage two of the consultation process?

4. A revised Action Plan for future steps, based on the actual publication date of the consultation paper on 14 December 2006, is as follows:
Action Time
Written Ministerial Statement in Parliament committing to consultation 2 February 2006
Research and Drafting of Phase 1 consultation (Principles, Context, and Options) February and March 2006
Obtain Ministerial clearance of draft Phase I paper and publication 14 December 2006
Consultation period 12 weeks minimum 7 March 2007
Analysis of responses and drafting of Phase 2 consultation (Preferred Option & Detailed implementation issues) April - June 2007
Obtain Ministerial clearance for and publish Response paper for Phase I paper and draft Phase 2 consultation paper June 2007
Consultation period (12 weeks minimum) July - September 2007
Analysis of responses and drafting of Response paper for Phase 2 October - December 2007
Obtain Ministerial clearance for and publish Response paper for Phase 2 January 2008
Drafting of appropriate legislation to effect change February - April 2008
Introduction and passage of legislation From May 2008? (Timing subject to Parliamentary business)

d) What are the Government's reasons for consulting on maintaining the blanket ban on voting for all prisoners, which was found to breach the ECHR by the European Court of Human Rights?

5. The consultation paper does invite views from persons who believe that it is right in principle that prisoners should remain disenfranchised, in order that they can be taken into account in considering the extent of any future reform. It encourages such respondents to consider thoroughly the available options. However, the document also makes it clear that retaining the blanket ban is outside the margin of appreciation given by the Hirst judgment, and that it is not, therefore, an option for the future,

e) What are the Government's reasons for excluding from the options for change any prospect of full enfranchisement?

6. As I stated in my foreword to the paper, the judgment did not conclude that the UK must enfranchise all prisoners. The Government is opposed to complete enfranchisement of all convicted prisoners. It is therefore omitted from the list of possible options for change in the consultation paper, so as clearly to indicate that it is not an option for reform that we would feel able to adopt.

William Scott v Electoral Registration Officer

I would be grateful if you could give us information about the Government's views on the declaration of incompatibility in this case. In particular, I would be grateful if you could:

a) Tell us whether, in light of the declaration in Smith and the number of forthcoming elections, the Government agree that there is a need for urgent action to amend or repeal s.3(1) Representation of the People Act 1983;

b) Tell us whether, in light of the imminent elections in Scotland, Northern Ireland and Wales, the Government have considered using the Remedial Order procedure to execute the judgment in Hirst and remedy the incompatibility identified in Smith before those elections took place, and if not, why not?

c) If you did consider using the Remedial Order process, please explain why this option has been rejected in favour of the two stage consultation proposed in the OCA consultation paper.

7. The Government notes the ruling of the Registration Appeal Court that it is part of the Court of Session for the purposes of section 4 of the Human Rights Act, and therefore has power to make a declaration of incompatibility under that section. The Government is considering the implications of this ruling.

8. Before turning to the questions raised by the Committee, I take this opportunity to note that domestic proceedings have also been brought by way an application for judicial review in Northern Ireland (In the matter of an application by Toner and Walsh for leave to apply for judicial review). These proceedings were brought on 15th February 2007, shortly before the Northern Ireland Assembly elections held on 7th March. They were dismissed by the High Court of Northern Ireland (which heard the matter on 1st March and delivered judgment on 2nd March) and the Court of Appeal of Northern Ireland (which heard the matter on 2nd March and gave its decision on that day). The Court of Appeal indicated that it may or may not deliver a full judgment in due course. A copy of the High Courts judgment is at Annex A, and of the affidavit evidence submitted on the behalf of the Secretary of State for Northern Ireland, at Annex B.

9. Turning to the questions raised by the Committee in respect of the Smith v Scott case, the Government does not agree with the Committee that the judgment of the Registration Appeal Court requires urgent action to repeal the current law barring prisoners from voting at UK elections. This judgment does not establish any new principle beyond that established in the Hirst judgment

10. The Government's clear view is that an issue as fundamental - the franchise requires careful consideration and deliberation, and should not be addressed piecemeal. We are clear that any extension of the franchise must be consistent across all elections within the United Kingdom.

11. The Government already has in place the process to address these issues - the current two-stage consultation on prisoners' voting rights. As I have stated above, the Grand Chamber of the European Court of Human Rights concluded that a total ban was outside the margin of appreciation given by the Convention, but the judgment does not require the UK to enfranchise all convicted prisoners, nor does it dictate which categories of prisoner should be enfranchised. Indeed, the Court acknowledged that there was no common European approach to this issue, and that Contracting States had a wide margin of appreciation in deciding which convicted prisoners should have the right to vote. This leaves the UK with a number of potential options that could be pursued, and which require public consultation followed by full consideration by Parliament.

12. For these reasons, the Government considers primary legislation to be the appropriate vehicle for implementing any option for change.

APPENDIX 14: MEMORANDUM DATED 16 MARCH 2007 FROM LIBERTY, RE IMPLEMENTATION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS AND DECLARATIONS OF INCOMPATIBILITY

Introduction

1. On 21 February 2007, the Joint Committee of Human Rights (the "JCHR") called for evidence on: (i) the implementation of judgments in the European Court of Human Rights (the "ECtHR") finding the UK to be in breach of the European Convention on Human Rights (the "ECHR"); and (ii) the adequacy of the Government's response to declarations of incompatibility made under the Human Rights Act 1998 (the "HRA"). In this short response we seek to draw out some general observations about the Executive's and Parliament's responses to such decisions.

2. We welcome the JCHR's recent decision to "be more proactive in relation to declarations of incompatibility, both in terms of pressing the Government to take action and, in appropriate cases, recommending what action should be taken"[188] and, similarly, to present "more regular progress reports examining the implementation of Strasbourg judgments".[189] Considering the UK's response to such decisions is, in our view, one of the JCHR's most important roles. Rather than giving our courts the final say about how our rights are protected, the HRA retains an important role for the other limbs of government: the Executive and Parliament. The JCHR helps to ensure that this role is properly performed by, for example (i) bringing adverse decisions of the Strasbourg and UK courts to Parliament's attention; (ii) scrutinising the Executive's response to such judgments and encouraging it to respond in an appropriate and timely manner; and (iii) scrutinising proposed new laws to limit the risk of future adverse decisions.

Implementation of ECtHR Judgments

Hirst v. United Kingdom[194]

8. Hirst related to the blanket ban on convicted prisoners in detention voting in elections. The applicant argued that this ban violated his right to free elections under Article 3 of Protocol No.1 of the ECHR (both alone and in conjunction with Articles 10 (the right to freedom of expression) and 14 (prohibition of discrimination)). The ECtHR held that there was a violation of Article 3 of Protocol No.1. Although the ban had a legitimate aim (i.e. preventing crime by sanctioning the conduct of convicted prisoners and enhancing civic responsibility and respect for the rule of law), it was not a proportionate measure to achieve that aim. It reached this decision on the basis that: (i) the ban applied to a significant number of individuals and encompassed a wide range of offenders and sentences; and (ii) the ban applied to only convicts with custodial sentences: it did not depend on the nature of the actual crime that had been committed. The restriction on the right to vote was thus general, automatic and indiscriminate, and it fell outside the margin of appreciation granted on the issue.

9. The Department for Constitutional Affairs (the "DCA") published a consultation paper, "Voting Rights of Convicted Prisoners Detained within the United Kingdom", in December 2006. The Government's position, as outlined in the paper, is that:

loss of the right to vote is "a proper and proportionate punishment for breaches of the social contract that resulted in imprisonment";[195] and

whilst steps must be taken to respond to the ECtHR's judgment, the judgment "did not conclude that the UK must enfranchise all prisoners":[196] total enfranchisement is therefore not offered as a possible option.

The DCA notes that other European states offer various forms of partial enfranchisement and sought responses on the options of: (i) relating disenfranchisement to the length of sentences; and (ii) allowing the sentencing authority to determine whether the right to vote should be withdrawn.

10. Liberty has provided a detailed response to this consultation[197]. For the purposes of this paper, we do not repeat the arguments made in that consultation response but make instead a few observations about the way in which the Government responded to the decision.

We are disappointed that the Government did not adequately address the reasons underlying the ECtHR's decision in Hirst. Instead, the consultation paper represented the decision as a "bolt out of the blue" and a judgment from on high which the UK was bound to follow. It failed to explain why and how the court had reached the decision and why many countries around the world are now giving their prisoners the right to vote.

The Government did not adequately consider the way in which other jurisdictions had responded to this issue. This may well have been embarrassing for the Government, demonstrating how far out of line the UK is becoming. Such information would, however, have helped to identify how other countries have responded to this issue which could be of use in deciding on the UK's response.

The consultation paper sought to close off the most progressive option for protecting the right to vote addressed in Hirst: the enfranchisement of all prisoners. It only proposed more minor reforms, saying explicitly that full enfranchisement is not an option.

The Government's response seems designed to do little more than ensure that, should another similar case be taken to the ECtHR, the UK's approach would be considered to be within its "margin of appreciation". Human rights are supposed to provide a floor rather than a ceiling, and it is therefore disappointing that the UK seems intent on responding to the decision in Hirst by making as limited a change to the current legal position as possible.

What is a Remedial Order?