UK Human Rights Blog's view and comment from JHL

UK Human Rights Blog's view and comment from JHL

Court of appeal rejects prisoner vote plea, government announces plans

December 17, 2010 by Adam Wagner

Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment

The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.



Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.

It is a somewhat curious, and poorly understood, aspect of human rights law that decisions of the European Court of Human Rights are binding on governments but only “persuasive” in the courts. Whereas, confusingly, decisions of the highest UK courts are not binding on our own government. The government almost always pays attention to UK judgments, particularly in judicial review challenges to public authorities, but constitutionally speaking it does not have to. This is in contrast to the situation in the United States where the Supreme Court has a mandate to change the law if it breaches the constitution.

A trip to the dentist

So it was only a matter of time before the UK government had to respond to the five-year-old judgment in Hirst No. 2 (see my previous post), in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting breached Protocol 1, Article 3 of the European Convention on Human Rights, the duty to provide free and fair elections.

But the decision to allow prisoners to vote was always going to be controversial, and particularly so given that it the “eurocrats” forcing the UK to do so. So like a trip to the dentist, the previous government in particular put off the decision despite carrying out multiple consultations.

Given the unusually long delay, it was inevitable that a prisoner voting case would be brought back to the courts. The Strasbourg human rights court is supposed to be a court of final remedy, so if that remedy is won but not implemented, there is nowhere else to go but back downwards.

Which brings us to Mr Chester, a convicted child rapist and murderer who is serving a life term in prison. He asked the administrative court initially, following Hirst No. 2 and the more recent case of Frodl v Austria (see our post), if there was anything else it could do to implement the principles made very clear in those judgments. The admin court rejected his claim, and it then came before Lord Justice Laws in the court of appeal (England and Wales’ second highest appeal court).

The proper role of the court

Given that the government had examined the matter but not done anything as yet, the case raised a “substantial question“, the judge began, “as to the proper role of this court“.

Mr Chester asked for two things. His primary case was that, following Hirst No. 2, which had made clear that the blanket ban on prisoner voting breached the European Convention, and Frodl, which requires that the question of who votes should be decided by a judge, the court should give effect to the rule. Alternatively, the court should make a declaration of incompatibility, as Scottish court did in 2007.

The courts do have reasonably broad powers to “read” the law so as to comply with the European Convention. This can even involve adding words to primary legislation, as the Supreme Court did very recently in a case involving unmarried fathers’ rights to appear at hearings involving their children in Scotland. But it can only do so if the new wording reflects, rather than runs contrary to, the spirit of the original law.

The court considered the now well-known principles arising from Hirst No. 2, emphasising that although the court ruled that the UK’s blanket ban was unlawful, it also said that states have a fairly wide margin of appreciation as to what prisoners should be allowed to vote. On Frodl, Lord Justice Laws found the decision confusing, in that it is not clear whether it is essential (para 34), or merely preferable (para 28) that the decision to disenfranchise a prisoner should be taken by a judge. The court also referred to the even more recent decision in Greens, in which the European Court reiterated that the UK needed to alter the law soon or potentially face compensation claims amounting to millions of pounds.

The court rejected Mr Chester’s arguments. Lord Justice Laws was not prepared to go beyond what he considered the ordinary relationship of the courts to the government. Although he accepted that Chester’s case was in part “driven by the long delay – still at present continuing – in promoting legislation to give effect to the decision in Hirst“, he concluded that the court simply “no role to sanction government for such failures.” He explained

Under the HRA the Minister has no obligation to act on a declaration of incompatibility. If he does not, the complainant’s remedy is to take proceedings in Strasbourg where he will be able to deploy the domestic court’s judgment to the effect that his Convention rights have been violated. And failure by a Member State of the Council of Europe to give effect to a decision of the European Court of Human Rights sounds at the political level; it is as such not amenable to sanctions in the national courts.

Mr Chester requested that the court at least provide an advisory opinion as to what would be needed for the government to appropriately implement the decisions of the European Court. Lord Justice Laws declined, in this case at least, although he did, interestingly, leave the question open for different cases in the future. It would have been

a step too far for our predecessors in the common law no more than a generation or so ago. An advisory opinion as to what legislation, as yet undrafted, might properly contain or omit would have been quite beyond the pale. As it happens I can see a possible utility in such a jurisdiction in very carefully controlled circumstances, as our constitutional law evolves a strategic partnership between the branches of government. But not – emphatically not – in this case.

He concluded that the legislation which the government eventually passes “is likely to be acutely controversial.” Moreover, the “controversy will not be about the law, but about the wisdom or unwisdom of social policy” arising rom “deep philosophical differences of view between reasonable people upon the question of prisoners’ suffrage.”

A constitutional lesson

This decision was unsurprising. Given that the government has already said it will change the law to allow some prisoners to vote, the court of appeal was hardly likely to use this opportunity to pick a constitutional fight. And Lord Justice Laws is right to say that it is for the courts to interpret and not make the law. But the prisoner voting issue highlights the full extent of human rights protections in the UK and their limitations when decisions must result in politically unpopular decisions.

The Human Rights Act, combined with the ever-increasing number of judicial reviews of public authorities, has given the courts an expanded role in – as Lord Justice Laws described it – the “strategic partnership” between branches of government. The courts are also becoming more confident in asserting their constitutional role, as seen in the Phil Woolas and parliamentary expenses cases.

This trend may eventually result in a genuine confrontation between the courts and the government. That may have come in this case if the government had continued its refusal to allow prisoners to vote. The court of appeal may have been more sympathetic to the argument that human rights law is toothless if the government can simply ignore decisions, leading to a more robust protection of rights. That time may come, perhaps if the government seeks to limit or exclude secret evidence from court proceedings. And that would be a very interesting test of our “unwritten” constitution”. But as the judge said, not in this case.

Comment: It would appear from Hirst v UK (No2) and the failure to fully comply with the judgment, that as a nation the UK neither has no honour nor shame.

The case also exposes weaknesses in domestic law, and in the Council of Europe enforcement mechanisms of the Court’s judgments.

Laws LJ, can be fairly criticised for his judgment in Chester. (I am also somewhat puzzled why Chivers and Hugh Southey QC took the case). It may be that the Supreme Court will be asked to settle the issue.

Laws LJ, appears to have employed the same reasoning as Kennedy LJ, in my High Court application, which the ECtHR criticised in Hirst No2. I refer to the point about philosophy. Whilst it is an interesting study, it has no place in law. Kennedy LJ, was asked to perform a simple task, that is, to declare s.3 of ROPA 1983 incompatible with Art 3 of the 1st Protocol of the Convention. He abdicated responsibility (which is amusing given the Tory pledge to introduce a British Bill of Rights and Responsibilities!). He did say if s.3 can withstand the challenge from Art 3 of the 1st Protocol, then that’s the end of it. As we now know, it couldn’t therefore s.3 has to fall. Both the Electoral Commission and Venice Commission have stated that, in the light of Hirst No2, s.3 must be amended. Therefore, the UK has no legitimate excuse for failing to change domestic law to fully comply with my judgment. Had Kennedy LJ, done the job he was entrusted to do in the first place then the UK might not be in the mess that it still is in today.

In my view, Adam Wagner is incorrect to say that ECtHR decisions are binding on the government but only persuasive in the courts. Hirst v UK(No2) is the Individual v the State. This means that within the UK the Executive, the Judiciary and Parliament (the 3 arms of the State) have been taken to the ECtHR and because they lost then it follows therefore that all 3 are bound by the decision. I rely upon the Interlaken process being the highest authority. As this post dates previous domestic decisions then they cannot be relied upon as being any longer authorititive. Either Parliament has to legislate for this or the Supreme Court must rule on the position. The problem still appears to be that what happens over there is foreign, and the UK retains its supremacy. As the UK is presently 1/47th of the Council of Europe, in my view, such claims of supremacy are ahistorical. The only way that the UK can keep its sovereignity or supremacy is to leave Europe altogether. Otherwise, it has to accept and be bound by the decisions reached by the United States of Europe.

In my view, Adam Wagner is also wrong to claim that Hirst No2 states that the government has a wide margin of appreciation as to which prisoners should be allowed to vote. The margin of appreciation only extends to how to fully comply with the ruling, for example, whether to allow postal votes or install polling booths in prisons, and not to limit the scope of the judgment itself. If Adam’s view was correct it would mean that some prisoners are less eligible for human rights than others.

Perhaps, Laws LJ, should have popped out of the court and looked up at the words “Protect the poor and punish the wrongdoer” if he really wanted to know what the role of the court is. It is to dispense justice. It cannot be claimed that he did that in Chester. Once more a judge acted as a goalkeeper for the Secretary of State. Judicial review, in my view, is not an effective remedy. Why should a citizen in a so-called liberal democracy have to seek permission to legally challenge a public authority? Perhaps, O’Reilly v Mackman should be revisited? In my reading of Chester, Laws LJ, states he does not understand the judgments in Hirst No2 and Frodl, and Carnwath LJ, and Lord Neuberger MR, both agreed with him. This begs the question why, given their ignorance of the law, they were deciding the case? Have we no more competent judges out there?

What is generally being missed with my case are the constitutional issues, and I agree with Adam that it would appear that a constitutional clash between the courts and the Executive and Parliament may be inevitable. The Interlaken process requires the State to remedy human rights breaches. Because we do not have a true separation of powers none of the 3 arms of State provide the necessary checks and balances required in a modern democracy. Human Rights, Democracy and the Rule of Law are under threat with our present system. It means we are heading for a showdown with Europe. As Europe has ruled that the principle of subsidiarity must apply, it expects the UK to sort it out or Europe will do it for the UK on the grounds that there exists a systemic failure. Given that the EU has acceded to the Convention under the Lisbon Treaty, I suspect that the next move will be direct application or direct effect. Possibly via the Court of Justice of the European Union.