VEP 0025             

Written evidence submitted by Anthony Speaight Q.C. (VEP 0025)

1. This paper is presented in response to the Committee’s call for evidence. It argues that the UK ought to comply with the rulings of the European Court of Human Rights, but in a different manner from the options in the draft Bill.

Article 3 of the First Protocol and its meaning

2. Article 3 of the First Protocol to the Convention (hereinafter "A3P1")reads:-

"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."

This provision contains an obligation to secret ballot and slightly unspecific obligations as to the frequency of elections and their freedom.  But it says nothing about the extent of the electoral roll.

3. The explanation for the absence of any reference to the extent of the franchise has been revealed by research by Dominic Raab MP[1].   In the negotiations leading to this Protocol.  In August 1949 the French delegate sought to incorporate the words "universal suffrage".  The British delegate objected, pointing out that, whilst the electorate in the UK was very wide, it was not universal.  It did not include prisoners; nor did it include certain mentally ill persons and peers.  In the light of this intervention the French delegate withdrew the proposal of the words "universal suffrage"

4. These discussions in the negotiation of the Convention are a proper tool to be used in resolving an uncertainty as to its meaning.  The European Convention of Human Rights is, of course, an international treaty.  There are established principles of international law for interpreting treaties.  These principles are today embodied in the Vienna Convention.  The proper approach is expressed thus by Professor Brownlie in the leading textbook "Principles of International Law"[2]:

"what matters is the intention of the parties as expressed in the text."

The role of working papers and negotiations is expressly recognised in article 32 of the Vienna Convention:-

"Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion ... to determine the meaning when the interpretation according to Article 31:

(a) leaves the meaning ambiguous or obscure ... "

Cases on prisoner voting prior to Hirst

5. For some years it was accepted by the institutions of the Council of Europe that A3P1 permitted signatory states the reach their own decisions as to whether prisoners might vote.    On a number of occasions the European Commission of Human Rights rejected claims by prisoners that their Convention rights were violated by their exclusion from the electoral roll[3].

6. In 1987 the European Court of Human Rights delivered a judgment which later has affected the decisions on prisoner voting in Mathieu-Mohin v Belgium[4].  The Mathieu-Mohin case itself had nothing to do with prisoner voting; it was concerned with a peculiarly Belgian question whether members of the national parliament who taken the oath in French could be members of a Flemish Council.   In the course of this case one of the issues raised was whether A3P1 conferred any individual rights, capable of being the subject of individual complaint at all.  The Court recognised that the language of A3P1, unlike every article, did not in terms speak of a person’s rights, but only of the state’s obligations.  Nonetheless, the Court held that A3P1 did secure individual rights.  One reason was that other articles in the First Protocol referred to article 3 as conferring rights.  Then the Court went on to say:-

"Nor do the travaux preparatoires of Protocol No.1 disclose any intention of excluding the right of individual petition as regards article 3 ... "

As such, there is no reason to complain at that statement, nor, indeed, anything in the Mathieu-Mohin judgment.

7. The next development occurred in Canada.  In Sauve v Canada (no 1)[5] the Canadian Supreme Court held that the national legislation which disenfranchised prisoners was incompatible with the Canadian Charter of Rights & Freedom, and hence unconstitutional.    The Canadian Parliament then amended the Canada Elections Act so as to provide that only prisoners serving sentences of more than 2 years were disenfranchised.  This law, too, was challenged; and in 2002 Sauve v Canada (no 2)[6] the Supreme Court held that this law still was incompatible with Canadian rights.   These decisions, however, ought to have had relatively little relevance to Europe since the Canadian Charter of Rights & Freedom contains, on its face, an absolute right to vote for every citizen:-

"Every citizen of Canada has the right to vote in an election of members of the House of Commons ..."

In contrast, as we have seen, the European Convention on Human Rights did not, either expressly, or on a proper interpretation, confer an absolute right to universal suffrage.

8. Nonetheless, the Canadian decisions encouraged arguments that the First Protocol ought to be interpreted in the same way, and played a prominent part in the arguments of Hirst and other prisoners in British domestic courts and at Strasbourg.  The Divisional Court rejected the argument, but at Strasbourg at both chamber and Grand Chamber level the argument succeeded.

The Hirst case

9. The Grand Chamber decision of the European Court of Human Rights in Hirst v UK (no 2)[7] is in many ways unfortunate and unsatisfactory.  There was a powerful dissent by 5 judges including Judge Wildhaber, who was then the President of the Court, and Judge Costa, who was to become President.  Regrettably, their wise counsel was outvoted by more interventionist judges including the British Judge Bratza; and it is now only the majority judgment, in many ways less well reasoned than the dissenting judgments, which is of significance.    The majority based its decision in part on an assertion that that the UK Parliament had never sought to weigh the proportionality of the competing interests: this ignored, as the dissenting minority pointed out, the unanimous recommendation of an all-party Speaker’s Conference on Electoral Law, and the view of a parliamentary working party, as well as the enactment of primary legislation by both chambers.  In some ways the most serious mistake lay in its treatment of the travaux preparatoires:-

"57.              ... having regard to the preparatory work to Art 3 of the Protocol and the interpretation of the provision in the context of the Convention as a whole, the Court has established that it guarantees individual rights, including the right to vote and to stand for election. "

The authority cited for that statement was the judgment in Mathieu-Mohin.  The actual documents do not appear to have been looked at.  The tenable contention that the travaux demonstrated some individual right to be conferred by A3P1 slid into the notion, which as a matter of historical fact was plain wrong, of an intention for universal suffrage extending to prisoners. 

10. The Joint Committee ought to be aware of one other aspect of the Strasbourg Court’s decision in Hirst.  That concerns life prisoners.  The draft Bill proposes in all three options that those serving life sentences should be barred from voting throughout their imprisonment.  Public opinion in the UK would probably regard such prisoners as constituting the paradigm case of those who should be disqualified from participation in the choice of government.  However, in the chamber judgment the voting ban was considered particularly indefensible in respect of those exceptionally dangerous criminals, who have completed the tariff part of their sentence, and who remain incarcerated for the protection of the public[8].  Therefore, hopes that adopting the 4-year option will put an end to problems with the Strasbourg Court over prisoner voting may be unduly optimistic.

The Scoppola case

11. The situation for the UK is not eased by the Strasbourg Court’s most recent decision, Scoppola v Italy (no 3)[9].    It is often said that the Court held that whilst a ban on all prisoners voting violated A3P1, a ban limited to those sentenced to longer terms is acceptable.  That is a considerable over-simplification.  The complaint against Italy failed by reason of the Court holding that the Italian system was "not excessively rigid".  The nuances of the Italian law include the following features.  Some offences entail a lifetime ban from holding office or voting by reason of their character, for instance embezzlement of public funds.  Those sentenced to over 5 years imprisonment are also banned for life, but subject to their right to apply to a court to have the ban lifted.  Those sentenced to between 3 and 5 years are subject to a ban for 5 years.  Thus in no case does the disenfranchisement appear to be coterminous with time in prison. 

12. The reasoning of the Court hinges very much on a rejection of automatic bans applied indiscriminately to any category of persons:-

"96.              The Court accordingly reaffirms the principles set out by the Grand Chamber in the Hirst judgment, in particular the fact that when the disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with art 3 of Protocol no 1."

On one reading that may be taken to signal that the 4-year option or the 6-month option in the Bill would be regarded by the Strasbourg Court as acceptable.  But even if that might be the thinking this year, there is little intellectual substance in such a position, and so it might not stand the test of much time.  A ban on those serving over 6 months or 4 years is as automatic and as indiscriminate as a ban on all prisoners.  In one sense a ban on those serving prison sentences is not indiscriminate, since, with the exception of murder, the imposition of a sentence of imprisonment is always an exercise of discretion by the sentencing court.   Such factors as "nature or gravity of their offence and their individual circumstances" are taken into account by the court.  In another sense the disenfranchisement is indiscriminate in that it is an automatic consequence of the imprisonment.  But that quality of automatic application would be as much present in a ban which affected every sentence in excess of any arbitrarily selected length.

13. In an earlier chamber decision, Frodl v Austria[10] the Court said it was an essential element "that the decision on disenfranchisement should be taken by a judge" accompanied by reasoning explaining why in the circumstances of the specific case disenfranchisement was necessary.  The Grand Chamber in Scoppola said it did not fully share this view.  So a case by case consideration by the sentencing court of whether to disenfranchise is not the only way of satisfying A3P1.  But it remains very much open to question whether either the 4-year option, or a fortiori the 6-month option, would for long withstand successful challenge in the Strasbourg Court

Do Hirst and Scoppola justify respect?

14. The decisions in Hirst and Scoppola are unsatisfactory not only for their overlooking of the contracting states’ intentions as to prisoner suffrage, but also for their lack of coherence with supposed principle.  In Scoppola the court reaffirmed,

"... the importance of the principle that each state is free to adopt legislation in the matter [of prisoner voting] in accordance with,

>historical development, cultural diversity and political thought within Europe, which it is for each Contracting state to mould into their own democratic vision’."[11]

If that really is the guiding principle it is difficult to understand why the UK Parliament’s decision, as reflected both in the Representation of the People Acts and in the House of Commons vote on the resolution proposed by the Rt Hon Jack Straw MP and Mr David Davis MP, cannot be adequate demonstration of the "democratic vision" of this country.

Should the UK wholly ignore the Strasbourg decisions?

15. The above discussion justifies the conclusion that the European Court of Human Rights decisions on prisoner voting have little moral authority or intellectual weight.  Some will argue that they should, therefore, be ignored.  But that would amount to a conscious decision by the UK to flout a treaty obligation.  For art 46 of the Convention provides:-

"The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties."

The national interest of the UK lies in fostering an international climate in which treaty obligations are respected.  It is hard to believe that our foreign policy objectives are compatible with a deliberate flouting of a treaty obligation.

16. Some argue that the resolution lies in leaving the Convention.  It is perfectly open to the UK to give 6 months notice of withdrawal.  Personally, I should regret that course being adopted at this stage.  In any event, it is not the policy of the present Government, and will not happen in the immediate future.

The policy proposed: a discretion to excuse from disenfranchisement for special reasons

17. Accordingly, the right course is a policy of the minimum change to prisoner voting laws which will satisfy the Strasbourg Court.  The 4-year and 6-month options, as set out in the draft Bill, are subject to two disadvantages:-

1. Neither may in the medium term satisfy the Strasbourg Court.
2. Both will result in significant numbers of prisoners becoming enfranchised, which is contrary to the mood and wishes of the general public.

18. One way to satisfy the Strasbourg case-law would be to enact that no prisoner shall be disenfranchised unless the sentencing court has made a separate order to that effect.  But this would involve extra time in every sentencing decision.  It would be unwelcome to the judiciary also because of the lack of any clear basis on which judges should take a decision which is at root political, namely, whether the punishm,ent element of prison should involve loss of the normal right to vote.

19. I offer a different policy.  My suggestion is to enact that any court passing a sentence of imprisonment shall also always make an order disqualifying the defendant from voting for the period of imprisonment, unless the defendant can advance special reasons for not making such an order.

20. There are many precedents in domestic law of orders made as part of a sentence banning a defendant from specified activities.  Examples include:-

1. Disqualification from the promotion, formation, management or liquidation of a company for a period of up to 15 years[12].
2. Prohibition from entering licensed premises[13].
3. Sexual offences prevention orders[14]
4. Disqualification from driving.

21. Driving disqualification provides a particularly interesting analogy.  Disqualification for driving having consumed excess alcohol is subject to an automatic period of disqualification unless special reasons can be shown by the defendant.  Similarly, disqualification under "totting-up" is automatic unless there are mitigating circumstances.  The proposal made here as to disenfranchisement would have a similar regime. 

22. The criteria for the exercise of discretion by the sentencing court in excusing a defendant from disenfranchisement might be stated in some such terms as these:-

"special reasons related to the nature or gravity of the offence, or the defendant’s particular circumstances, sufficient to displace the general policy emerging from the historical development and political thought of the United Kingdom that an offender whose offence justifies a sentence of immediate imprisonment ought to be disenfranchised during the period of imprisonment".

23. This arrangement would possess the same virtue as the Italian in avoiding rigidity, since every defendant would have the option of seeking an individualised judicial decision, and the grounds for the exercise of discretion would be rooted in the language of the Strasbourg judgments.  There would be nothing automatic or indiscriminate in the ban.

24. This policy would also in all probability mean that very few prisoners would vote.  It would, therefore, achieve an outcome closer to the national mood than any alternative.  It seems unlikely that many defendants would ask their counsel to make an application for a finding of such special reasons.  Most will prefer to expend such capital as they have  on urging a shorter period of imprisonment or a suspended sentence.   And amongst those defendants who do make such an application it is probable that only a small number would succeed.

25. Finally, some consideration must be given to the situation of those who are already serving a sentence of imprisonment.  Transitional provision should be made for such persons to make a paper application for a finding of special reasons for non-disenfranchisement.  Since they have already been sentenced, this could not be to a sentencing court: an ad hoc body, or the Parole Board, or some tribunal, should be designated for this purpose.

Summary

26. The Strasbourg Court has overlooked the actual working papers showing the intention of the contracting parties as to A3P1.  The Court’s decisions are unimpressive in reasoning.  But the UK ought not to deliberately to flout a treaty obligation.  Instead it should adopt a policy of minimal compliance.  That would be to enact that every court sentencing to imprisonment must also impose disenfranchisement for the period in prison, subject to the defendant presenting what the court finds to be special reasons for excusing from this order.

June 2013