Previous incompatibility finding is sufficient

Previous incompatibility finding is sufficient

Queen’s Bench Division

Published November 3, 2009

Regina (Chester) v Secretary of State for Justice and Another

Before Mr Justice Burton

Judgment October 28, 2009

An English court would not make a declaration that existing national legislation was incompatible with the European Convention on Human Rights where there was a ruling by a Scottish court in respect of the same or similar legislation and where the government was in the process of laying proposals before Parliament in response to a ruling of the European Court of Justice (sic ECtHR).

Mr Justice Burton so held in the Administrative Court of the Queen’s Bench Division, when dismissing a claim by Peter Chester, a prisoner at Wakefield, who had served the minimum term of a life sentence for the rape and murder of his niece, but who had been detained in prison after a Parole Board finding that he was a post-tariff lifer, too dangerous to release into the community.

His claim was for judicial review of decisions dated August 5, 2008, and December 14, 2008, of the first defendant, the Secretary of State for Justice, and of the refusal on April 28, 2005 by the second defendant, Wakefield Metropolitan District Centre, to permit him claimant to vote in the parliamentary and European Union elections.

The claim was issued in 2008 in anticipation of the European elections which were due to take place in June 2009, on the ground that the ban on convicted prisoners voting contained in section 3 of the Representation of the People Act 1983 and section 8 of the European Parliamentary Elections Act 2002 was a violation of their rights under the European Convention on Human Rights and European Union law.

It was based on the ruling of the Grand Chamber of the European Court of Human Rights, that the blanket ban on convicted prisoners in custody from voting in elections imposed by section 3 of the 1983 Act was a breach of article 3 of Protocol 1 of the Human Rights Convention: Hirst v United Kingdom (Application No 74025/01) (The Times October 10, 2005; (2005) 42 EHRR 41).

Following Hirst, the government had set in process a period of consultation and after the closure of the second period of consultation on September 29, 2009, indicated that it would set a timetable for the introduction of legislation into Parliament amending section 3 of the 1983 Act. The rights in respect of European elections under section 8 of the 2002 Act followed those under section 3 of the 1983 Act.

According to government proposals in both the first and second consultation papers, there was no intention to enfranchise posttariff lifers in any new legislation.

The claimant sought:

First, a declaration of incompatability of section 3 of the 1983 Act with the Convention specifically in relation to post-tariff lifers and as a matter of discretion because the government’s proposals for fresh legislation did not make any provision to change that position.

Second, the reading down and reinterpretation of section 8 of the 2002 Act in one of two alternative ways so as to ensure it complied with European law, based on: (i) section 3(1) of the Human Rights Act 1998, whereby legislation had to be read so as to give effect to the Convention and (ii) as far as EU law was concerned based on the principles established in Marleasing v Commercial International de Alimentacion SA (Case No C-106/89) ([1990] ECR 1-4135) and exemplified, for example, in Coleman v Attridge Law (Case C-303/06) (The Times July 29, 2008; [2008] ICR 1128).

Alternatively, a declaration that section 8 of the 2002 Act was incompatible with the Convention and/or article 190(1) EC (OJ Dec 29, 2006 vol 49 C321 E/130), which required election by direct universal suffrage, and the European Communities Act 1976.

Finally, that any legislation to be enacted by the United Kingdom in replacement for section 3 of the 1983 Act would not comply with the Convention unless it provided for the enfranchisement of post-tariff lifers.

Mr Hugh Southey for the claimant; Mr James Eadie, QC and Mr Jason Coppel for the Secretary of State for Justice; Mr Philip Coppel, QC, for Wakefield.

MR JUSTICE BURTON said that in respect of the reading down of section 8 of the 2002 Act, a United Kingdom court had already rejected the reading down of article 3 of the 1983 Act in respect of post-tariff lifers on the basis that the legislation overall clearly did not leave any room for that and that the issues were complex and policy decisions needed to be made by the government on the extent of the enfranchisement of prisoners: see Smith v Scott ([2007] SC 245) in the Registration Appeal Court, Scotland.

The reasoning of the court in that case applied equally to section 8 of the 2002 Act and this was therefore not an appropriate case for the reading down of section 8 under either section 3 of the 1998 Act or the principles enunicated in Marleasing.

With regard to a general declaration of incompatability of section 3, his Lordship considered whether it was appropriate to grant a declaration of incompatability where a ruling had already been given in respect of the same legislation by another UK court.

He distinguished Bellinger v Bellinger (The Times April 11, 2003; [2003] 2 AC 467) on the ground that the declaration in that case was made because the government had made a concession but not yet given any assurance about the introduction of compliant legislation and he distinguished R (Greenfield) v Secretary of State for the Home Department (The Times February 18, 2005; [2005] 1 WLR 673) where Lord Bingham of Cornhill made various declarations on the basis that they would be an important part of the claimant’s remedy and an important vindication of his rights.

In the present case, it had already been decided in Smithv Scott that section 3 was incompatible with the Convention and there was therefore an order by which the government was bound.

The government had already accepted that incompatibility and was in the process of putting forward legislation to Parliament and it was therefore unnecessary for another declaration of incompatablity to be made by another court. Furthermore, no further vindication of the claimant’s rights was needed.

In respect of the claim that section 8 of the 2002 Act was incompatible with 190(1) EC and/or the 1976 Act, the declaration could only be made on the basis that section 8 of the 2002 Act was non-compliant with EU law because it was non-compliant with the Convention.

That argument did not add anything further to the consideration of whether a declaration should be made in respect of incompatability with the Convention.

Furthermore, it was not appropriate for the court to exercise its discretion to make a declaration of incompatability because:

First, there was no presently intended European election and new legislation was likely to be in place by the time the next elections were held.

Second, the claim under section 8 was parasitic upon the section 3 claim and a declaration had already been made in respect of that section: Smith v Scott.

Finally, in respect of the claim for a declaration of incompatibility of section 3 of the 1983 Act specifically relating to the position of post-tariff lifers and in respect of the claim for a declaration that any new legislation would not comply with the Convention unless it provided for enfranchisement of post-tariff lifers: while it was the government’s intention not to enfranchise post-tariff lifers, proposals had not yet been laid before Parliament, and any declaration intended to put pressure on the first defendant to bring legislation before Parliament was offensive to constitutional principles: R (Wheeler) v Office of the Prime Minister and Another ([2008] EWHC 1409 (Admin)).

Furthermore, while it was unlawful for a public authority to act in a way which was incompatible with a Convention right, an act did not include a failure to introduce in, or lay before, Parliament proposed legislation: see section 6(6) of the 1998 Act.

In addition, the Grand Chamber in Hirst had ruled that the government had a margin of appreciation and it was to be left to Parliament to decide with what to replace the blanket ban on prisoners’ franchise. It was therefore inappropriate to grant declaratory relief on any of the grounds put forward.

Solicitors: Chivers Solicitors, Bingley; Treasury Solicitor; Ms Liz Bashforth, Wakefield.