April 2007
Prisoners and the Vote: the case of Smith v Electoral
Registration Officer
This article is funded by the Clarke Foundation for Legal Education.
About CjScotland articles: These occasional articles, written by authors from a range of different
perspectives, aims to both provoke and inform public debate. Selected links for further reading,
information about referencing and using these articles, a disclaimer and a note of forthcoming and
previous publications can be found below the text.
Summary
This article discusses the recent decision by Scotland's Registration Appeal Court that prisoners
have a right to vote and that this right has been violated. This may be traced to the failure of
Government to respond effectively to an earlier decision against the UK in the case of Hirst and in
particular, its failure to take the Scottish Parliamentary elections into account.
Author
Angus Gillies is studying law at the University of Strathclyde following a first degree in European
Business Law. He has been involved in human rights activism for several years.
Contact: [email protected]
'£7m For Prisoners Denied the Vote' – The Herald 25th January 2007
Since the 2005 decision of the Grand Chamber of the European Court of Human Rights in the Hirst
case, it has been clear that the legislation relating to the voting rights of prisoners in the United
Kingdom was out of date and in breach of human rights law. However, despite the inescapable
complications and disaffection that would be thrown up by a wrongfully disenfranchised prison
population in the current Scottish Parliamentary elections, the response of our political institutions
to this issue since the ruling has been woefully inadequate. As a result, numbers of prisoners have
taken court action seeking an interim interdict over the proceedings and claiming damages. (You
can follow the progress of these cases in the News blog).
The recent torrent of news articles on this issue was prompted by the decision in the Smith v
Electoral Registration Officer case (1). To place the decision in its legal context, it will be necessary
to discuss the case of Hirst v United Kingdom (74025/01) (2005) 155 N.L.J. 1551 (ECHR (Grand
Chamber)) in which the UK's blanket ban on prisoner voting was held to be contrary to the
European Convention on Human Rights. Hirst was a convicted prisoner serving a sentence of life
imprisonment and, like most prisoners in the UK, Section 3 of the Representation of the People Act
1983 prevented him from voting.
Section 3 of the Representation of the People Act, provides: "A convicted person during the time
that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at
any parliamentary or local government election". This prohibition is not absolute in that it does not
apply to those imprisoned for contempt of court or those imprisoned for non-payment of fines.
Moreover, the provisions were relaxed by the Representation of the People Act 2000 by excluding
prisoners on remand and unconvicted mental patients from the ban. However, despite these limited
exceptions, the prohibition remains one of the most draconian amongst the signatory states to the
Convention. At the time of the Hirst decision, prisoners were entitled to vote in 16 countries, could
in some circumstances vote in 13 countries and were completely unable to vote in 13.
How then is our right to vote protected under the Convention? The answer lies in the jurisprudence
of the ECHR. The Court has interpreted Article 3 of Protocol 1 of the Convention as conferring an
individual right to vote (2). It is important to note, however, that this right is not absolute. States are
permitted to impose limitations on this right provided they essentially pursue a legitimate aim and
are proportionate.
The flexibility afforded to state legislatures in determining the scope of such limitations has been
considerable. This wide margin of appreciation (3) has been granted to signatory States in the past
to help safeguard the integrity of representative democracy and to respect the wealth of cultural and
political differences throughout Europe. Therefore, prior to the Hirst decision, it was considered
that the Court would almost certainly tolerate a limitation to Article 3 of the type imposed by the
UK. However, it is important to note that the Convention is a living instrument, interpreted in light
of changing social standards and it is on this basis that the Grand Chamber went on to review the
electoral regime in the UK.
As is now widely known, the Grand Chamber found that section 3(1) of the 1983 Act was
incompatible with Article 3 and that the appellant's rights under that Article had been violated. The
Government had attempted to justify the ban partly on the grounds that there was no European
consensus on the question of prisoner disenfranchisement. However, the Chamber made it clear that
the margin of appreciation afforded to States was "not all embracing" and a restriction of a general,
automatic and indiscriminate nature fell outwith it.
It should be noted that the way in which in which the European Court reached this conclusion raised
concerns. The legislation impacts upon a huge number of individuals carrying out a custodial
sentence whose offences range from the relatively minor to those of utmost seriousness. The ban
contained within the legislation is undoubtedly an extremely blunt tool utilized by the Westminster
Parliament to achieve its aims in this area. Surprisingly, however, the Court did not reach its
findings after simply probing the measure for disproportionality. The Grand Chamber omitted some
of the interesting substantive points on the measure’s disproportionality relied upon by the Fourth
Chamber of the ECHR and scrutinised more intensely the decision making processes of Parliament,
the Court of Appeal and the Government in order to gauge whether the UK had stepped beyond its
'margin of appreciation'(4).
The European Court analysed the deliberations of Parliament to determine whether adequate
reasons for the enactment of the legislation were given and if the proportionality of a blanket ban
has been debated. The Grand Chamber suggested, therefore, that that a failure by Parliament to give
adequate reasons for its enactments may result in a finding that those measures are in violation of
Convention rights. It has been observed that this approach contradicts a basic principle of the
United Kingdom's constitution (5). Article 9 of the Bill of Rights 1689 states that: "the freedom of
speech and debates or proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament" and the House of Lords has made it clear that reference may be
made to statements in Parliament as "background information" except where the Court is attempting
to resolve statutory ambiguities.
As a result, there remained scope for the domestic courts on this issue to depart from the
methodology in Hirst under Section 2 of the Human Rights Act (6). The House of Lords have
proposed that the Court's role under S.2 is to follow any clear and constant jurisprudence of the
European Court in the absence of any "special circumstances". "Special circumstances" are thought
to mean any decision of the European Court which would compel a conclusion fundamentally at
odds with the distribution of powers under the British constitution (7).
Nevertheless, by the time the issue came before the Court of Session judges who sit in the
Registration Appeal Court in Scotland, the Secretary of State had accepted the findings of the Grand
Chamber in Hirst and conceded that the appellant’s rights under Article 3 of the First Protocol of the
Convention had been violated. Thus, the Registration Appeal Court turned its attention to the
impact of the decision on national law. Firstly, under section 3 of the Human Rights Act the
domestic courts are obliged to ‘ read down’ or interpret the offending statutory provision in such a
way as to render it Convention compliant where it is possible to do so. However, it became evident
at an early stage that the blanket ban contained in the 1983 Act simply did not leave the Court with
any starting point for interpreting the legislation in a manner that would afford all or some prisoners
with voting rights. Moreover, the Court expressed deep reservations about usurping the democratic
functions of Parliament in outlining the extent to which prisoners could participate in the electoral
process.
Their Lordships, having established that with regard to the provisions of section 4(5) of the Human
Rights Act, that they were in fact capable of issuing a declaration of incompatibility whilst sitting in
the Registration Appeal Court, went about determining if it should do so. As previously noted, the
Secretary of State had accepted the decision in Hirst and, as a result, any election disregarding the
franchise of convicted prisoners in the UK, to any Parliament, would be incompatible with the
Convention. It was foreseeable at this point, therefore, that the Court would ultimately declare the
pertinent provisions of the 1983 Act incompatible. It could also have been predicted that it would be
reluctant to accept any contention by the Secretary of State designed to convince the Court that the
matter would be adequately dealt with in due course. However, the Court usefully detailed the
action taken in light of the Hirst decision to assist in reaching their decision on this point and it was
through this process that the inadequacy of the Westminster Government’s reaction to the decision
came to light.
It became clear at an early stage that the Government had slipped badly from its own action plan
drawn up as a response to the Hirst decision. The Registration Appeal Court acknowledged the
complexities raised by the issue of prisoner disenfranchisement and that the development of any
measure to bring the electoral process into convention compatibility would be lengthy. However,
the Court correctly emphasised that the issue before them was not new and was brought to the
attention of the Government well before the Hirst decision. As previously noted, Parliament had
already passed the Representation of the People Act 2000 enabling certain categories of prisoners to
vote in the United Kingdom . Moreover, prisoners' voting rights had been considered on several
occasions under Strasbourg jurisprudence and there had been a number of different strategies
adopted in other jurisdictions to deal with the problem.
It is surprising and somewhat regrettable that the action plan drawn up by the Government
following the Hirst decision contained no mention of the 2007 Scottish Parliamentary election
whatsoever and this was a highly significant factor in the court reaching its conclusion that a
declaration of incompatibility should be issued. The Government had promised a consultation paper
which would deal with the complexities in dealing with the Convention, prisoners and the franchise
but this had not been published and such factors contributed to the unavoidable conclusion that the
Government had failed to react to the Hirst ruling in an efficient manner.
Comments
The court therefore held that the Act was incompatible with the Convention and issued a declaration
to that effect. Nevertheless, the Scottish Parliamentary elections are going ahead in a way that will
violate the human rights of inmates. The impact of this decision is already being felt and the Court
of Session has already rejected Donald Birrell's attempts to take part in the elections (see decision
below). Birrell had been let out licence and would have been entitled to cast a postal vote had his
licence not been revoked. His attempts to have the recall quashed were rejected by Lord Clarke on
the grounds that the potential threat to public safety outweighed the right of Birrell to take part in
the election. However, Birrell and three other inmates are currently seeking damages and are
pursuing an interim interdict over the elections. By virtue of Section 57(2) of the Scotland Act 1998
the Scottish Ministers and Administration are inhibited from acting in a manner incompatible with
the European Convention on Human Rights. It follows that any official act by a Scottish minister or
the administration related to any election under our current voting system or their participation in
that system appears to be outwith their devolved powers(9). This will guarantee, at the very least,
that the improper disenfranchisement of our prisoners will continue to cast a shadow of uncertainty
over the exercise of democracy.
The Chamber in the Hirst case considered whether the stated aims of the ban were legitimate and,
in doing so, merely hinted at having some doubts regarding its efficacy (10). It is predictable that
the European Court will refrain from scrutinising too closely the prima facie legitimate
governmental aims of signatory states. However, it should be noted that there is no evidence to
suggest that prohibiting inmates from taking part in the democratic process contributes to deterrence
or rehabilitation. Moreover, as was noted by the Canadian Supreme Court in Sauvé v Canada (No.2)
(2002) 3 S.C.R. 519, prisoner disenfranchisement undermines democracy since the very legitimacy
of and obligation to obey the law stems from the ability of every citizen to participate in the
democratic process of their state. The disenfranchised prisoner is in fact excluded from an important
means of inculcating democratic values and civic responsibility and the democratic principles of
inclusiveness and equality are subverted.
By virtue of the provisions of Paragraph B3(b) in Part II of Schedule 5 to the Scotland Act, the
responsibility of reconstructing the franchise to the Scottish Parliament rests with the Westminster
Parliament and is thus outwith the competence of the Scottish Parliament and Executive(11). It is
hoped that when the Westminster Government finally legislates in this area, it will take into
consideration the above wider societal interests. The inadequacy of the Westminster Government’s
response and the lengthy ongoing consultation process becomes even more difficult to understand in
light of the requirements listed by the Grand Chamber of the ECHR in Hirst, to ensure the
convention compatibility of any national law designed to disenfranchise prisoners on conviction.
In order to adhere to the requirements of proportionality, any future measure enacted by
Westminster must disenfranchise only people convicted of the most serious crimes as it cannot
simply be assumed that everyone who serves a sentence has breached the social contract. Moreover,
the legislation in question must provide that disenfranchisement, as a complementary sanction, is a
matter to be decided by the judge, not the Executive. Finally, in those Contracting States where the
sentence may comprise a punitive part (retribution and deterrence) and a period of detention based
on the risk inherent in the prisoner's release, the disenfranchisement must remain confined to the
punitive part and may not be extended to the remainder of the sentence.
Footnotes
(1)[2007] CSIH 9 XA33/04
(2) Article 3 protocol I provides 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.'
(3) The term 'margin of appreciation' is a concept derived from the principle of subsidiarity. It is the
duty of the domestic authorities to secure and protect Convention rights. The ECHR is primarily
concerned with supervision and its role is therefore subsidiary to that of the domestic authorities
unless that system breaks down. It is not for the European to substitute the decisions of democratic
state authorities who are better placed to exercise judgement and are in direct and continuous
contact with the vital forces of their countries.
(4) See Hirst v UK (No.2) (2004)
(5) See Hirst v UK (No.2) (2004) 38 E.H.R.R. 40. See also Tom Lewis "'Difficult and Slippery
Terrain'". Hansard, Human Rights and Hirst v. UK 209 P.L 2006 at page 212.See Tom Lewis at page
209.
(6) s.2. Human Rights Act obliges a court in 'determining a question which has arisen in connection
with a Convention right" to "take into account any judgement . . . of the European Court . . . so far
as, in the opion of the Court . . . it is relevant to the proceedings in which that question has arisen'.
(7) The Grand Chamber considered the UK government's stated aims of the ban - to help prevent
crime by "sanctioning the conduct of convicted prisoners" and to ""enhanc[e] civic responsibility
and respect for the rule of law to be legitimate. This, however, is merely one hurdle the signatory
state must clear in attempting to persuade the ECHR. The violation occurred, as has been noted, as
a result of disproportionality and the United Kingdom over stepping its margin of appreciation as
opposed to the aim of the ban being illegitimate.
(8) See Tom Lewis (note 5 above) at page 216.
(9) In other words it will be an ultra vires act and, as a result, invalid.
(10) The Grand Chamber considered the UK government's stated aims of the ban - to help prevent
crime by "sanctioning the conduct of convicted prisoners" and to ""enhanc[e] civic responsibility
and respect for the rule of law to be legitimate. This, however, is merely one hurdle the signatory
state must clear in attempting to persuade the ECHR. The violation occurred, as has been noted, as
a result of disproportionality and the United Kingdom over stepping its margin of appreciation as
opposed to the aim of the ban being illegitimate.
(11) Paragraph B3(b) provides that "elections for membership of the House of Commons, the
European Parliament, the [Scottish] Parliament, including the subject matter of ... the
Representation of the People Act 1983 and the Representation of the People Act 1985 ... so far as
those enactments apply, or may be applied in respect of such membership" are matters reserved to
the Westminster Parliament.
Links
Hirst v The United Kingdom (No.2) This is an extended press release. The full judgement can be
downloaded as a document from the ECHR web site.
Smith v Electoral Registration Officer (2007)
Liberty’s Response to the Department for Constitutional Affairs’ Consultation on the Voting Rights
of Convicted Prisoners Detained within the United Kingdom (March 2007)
Voting rights of convicted prisoners detained within the United Kingdom - the UK Government’s
response to the Grand Chamber of the European Court of Human Rights judgment in the case of
Hirst v. the United Kingdom
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