dissertation complete
TRANSCRIPT
50901800
Critically evaluate the United Kingdom’s stance on the
enfranchisement of its prisoners.
This dissertation shall explore the jurisprudence of the European Court of Human
Rights and the current domestic legal situation regarding prisoner
disenfranchisement in the United Kingdom. I shall then analyse the responses of the
institutions of the United Kingdom to the Strasbourg case law. The wider
constitutional issues facing the United Kingdom will then be analysed, using prisoner
disenfranchisement as the context to draw conclusions on the potential impingement
of parliamentary sovereignty by the Strasbourg court.
22 April 2014
This dissertation is submitted in partial fulfilment of the LLB Honours Degree.
1
Contents
Contents 2
Primary Sources 3
Introduction 6
Chapter I – Locked out of Democracy 9
1.1 What is the disenfranchisement? 9
1.2 Case law of the European Court of Human Rights. 12
1.3 Tension between the UK and the European Court of Human Rights. 19
Chapter II – Justifications for Prisoner Disenfranchisement 23
2.1 History, Human Rights, and Penal Populism 23
2.2 Civic Death 24
2.3 The Social Contract Theory 28
2.4 Reform and Penal Populism 34
Chapter III – The Broader Constitutional Context 38
3.1 Parliamentary Sovereignty 38
3.2 The ECHR as a ‘Living Instrument’ 41
3.3 A Conscious Reassertion of Parliamentary Sovereignty? 44
3.4 Is there a Democratic Deficit? 50
Conclusion 53
Bibliography 56
2
Primary Sources
Table of Legislation:
Domestic Legislation:
Criminal Justice Act 1967
Murder (Abolition of the Death Penalty) Act 1965
Representation of the People Act 1969
Representation of the People Act 1983
Representation of the People Act 1987
Voting Eligibility (Prisoners) Draft Bill
International and Regional Treaties:
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights as amended) (ECHR)
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into
force 21 October 1986) (1982) 21 ILM 58 (African Charter)
International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
The Universal Declaration of Human Rights (adopted 10 December 1948 UNGA RES
217 A(III) (UDHR)
3
Table of Cases:
Domestic Cases:
Chester v Secretary of State for Justice; McGeoch v The Lord President of the
Council & Anor [2013] UKSC 63
R. v (1) Secretary of State for the Home Department (2) Election Registrations
Officers, Ex Parte (1) Pearson (2) Martinez: Hirst v HM Attorney General [2001]
EHWC Admin 239
R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL
SSHD v. AF and Others [2009] UKHL 28
European Court of Human Rights Cases:
Frodl v Austria (Application no. 20201/04) [2010] ECHR
Goodwin v. The United Kingdom (Application no. 28957/95) [2002] ECHR
Greens and M.T. v. The United Kingdom (60041/08) [2010] ECHR 1826
Hirst v. United Kingdom (No. 2) (Application no. 7402/01) [2005] ECHR
Kress v. France 39594/98 [2001] ECHR
R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014]
EWCA Crim 188
Scoppola v. Italy (No. 3) (Application no. 126/05) [2012] ECHR Grand Chamber
The Case of Othman (Abdul Qatada) v. The United Kingdom (Application no.
8139/09) 17 January 2012
4
The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook on the
European Convention on Human Rights
Tyrer v. The United Kingdom 2 EHRR 1 (25th April 1987)
Vinter v. the United Kingdom (application no. 66069/09) [2013] ECHR
5
Introduction
Throughout the last decade the issue of prisoner disenfranchisement has been present
in the legal and political spheres of the United Kingdom. It has attracted significant
attention from the public and media alike, and there is significant academic
commentary on the subject. Currently, the law in the United Kingdom is clear –
convicted criminals cannot vote in parliamentary, local, or European elections for the
period of their imprisonment. The European Court of Human Rights has ruled that
this position constitutes a direct violation of the right to free elections as enshrined in
the European Convention on Human Rights. Legislative reform may, however, be on
the horizon in the form of the Voting Eligibility (Prisoners) Draft Bill.
Underlying the prisoner disenfranchisement issue has been a wider constitutional
debate surrounding the relationship between the executive and legislature of the
United Kingdom and the European Court of Human Rights in Strasbourg. It has been
argued that judgements from the Strasbourg court on controversial topics have
resulted in a democratic deficit and thus an infringement of parliamentary
sovereignty. Indeed the prisoner voting issue has been a significant contributory factor
to the tense and fractious relationship that exists between the United Kingdom and the
Strasbourg court.
This dissertation shall critically analyse the issue of prisoner disenfranchisement in
the reference to the broader constitutional context, with each chapter analysing
different issues within the debate.
6
The first and second chapters of this dissertation focus on the background to the
blanket ban in both the European and domestic setting. Chapter I sets out to achieve a
comprehensive analysis of the Strasbourg court’s jurisprudence on the prisoner
disenfranchisement issue through its case law, and British support for the continuation
of the ban. I shall trace the reactions of the public, politicians, and press to the most
high profile Strasbourg cases concerning prisoner disenfranchisement. Conclusions
shall then be drawn on reasoning for the tensions that can be felt between both
entities. It shall be argued that this tension appears on two levels: the first level relates
to stubbornness to reform that stems from political fear of public opinion, the media,
and “Euro – scepticism.” The second level of tension runs a great deal deeper.
Chapter II evaluates the historical justifications for the blanket ban, and examines if,
in this era of universal human rights, such justifications are legitimate. From here I
shall evaluate the proposed legislative reform, adding my own proposals to fill in
what I believe to be gaps in reform.
The second level of tension relates to the broader constitutional context and the
parliamentary sovereignty debate that now surrounds the prisoner disenfranchisement
issue. This question of sovereignty shall be explored through illustration of a clash
between the Diceyan notion of sovereignty and the interpretation of the Convention as
a “living instrument” by the Strasbourg court. Conclusions shall then be drawn on a
conscious reassertion of sovereignty by the British judiciary, executive, and
legislature. The question of an impingement of parliamentary sovereignty shall be
answered through an evaluation of the Strasbourg court’s judgements in relation to the
United Kingdom.
7
In this way the nuances of the relationship may be illustrated both within the sphere of
prisoner disenfranchisement and its wider context, highlighting issues within the
relationship that are troublesome. These centre on a perceived democratic deficit, the
interlinking nature of law and politics within the United Kingdom, and a clash of
interpretative norms.
‘law has often played second fiddle to politics in the regulation and maintenance of
the UK’s constitutional system.’1
1 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series 2012 , Working Paper No. 1
8
Chapter I – Locked Out of Democracy
1.1 What is the Disenfranchisement?
Criminals in the United Kingdom who are serving a custodial sentence do not have
the right to vote. The ban was enshrined in the Representation of the People Act 1983
as amended by the Representation of the People Act 1985.
(1) A convicted person during the time that he is detained in a penal
institution in pursuance of his sentence [or unlawfully at large when he
would otherwise be so detained] is legally incapable of voting at any
parliamentary or local government election.2
This is an unqualified provision meaning that no prisoner3 in the UK has the right to
vote – thus, a blanket ban on incarcerated criminals voting is in place. The right to
vote has been an historically contentious area; it has signified the progression of civil
rights as illustrated by the extension of the franchise to marginalised groups of
society. Key (historical) examples include the British women’s suffrage movement in
the twentieth century, the US Voting Rights Act of 1965 which allowed for the mass
enfranchisement of racial minorities, and the achievement of equal voting rights in
post-apartheid South Africa in 1994.
2 Representation of the People Act 1983 s. 33 Remand prisoners have the right to vote due to the amendment of the Representation of the People Act 1983 with the Representation of the People Act 2000. This was achieved by the insertion of s. 7A into the 1983 Act.
9
‘During the twentieth century, constitutional democracies have tended to extend the
franchise to once-excluded groups: women, racial and ethnic minorities, the indigent
and the illiterate. Having extended the franchise to these groups, a legislature could
not try to withdraw it without inviting great political controversy.’4
As such, the right to vote is an internationally recognised civil liberty and human right
which is afforded a high level of protection at both international and domestic levels.5
Most relevant to this paper are the protections afforded to the franchise in Europe, and
specifically, the European Convention on Human Rights.6 Article 3 of Protocol 1 of
the ECHR states 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.’7
The UK’s current position on prisoner disenfranchisement finds runs contrary to the
ECHR, as section three of the Representation of the People Act 1983 violates Article
3 of Protocol 1. Therefore, it is evident that the UK is dismissing its treaty obligations
which dictate that there is an obligation to bring domestic law in line with the
applicable treaty provision.8 The UK’s position has led to a plethora of cases going
4 Michael Plaxton, Heather Lardy, ‘Prisoner Disenfranchisement: Four Judicial Approaches’, 28 Berkeley J. Int’l Law. 101 (2010)5 The Universal Declaration of Human Rights (adopted 10 December 1948 UNGA RES 217 A(III) (UDHR) art. 21; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter).6 Hereinafter referred to as the ‘ECHR’7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Article 3 of Protocol 18 Ibid art. 46
10
before the European Court of Human Rights,9 the first of which was Hirst v UK (no.
2).10 11
9 Hereinafter referred to as the ‘ECtHR’10 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR11 There are currently 2354 applications against the UK regarding prisoner disenfranchisement that ECtHR have adjourned its consideration of.
11
1.2 Case law of the European Court of Human Rights
In 1980 John Hirst was convicted of manslaughter and sentenced to fifteen years in
prison for killing his landlady with an axe. Hirst served ten years on top of his original
sentence due to offences committed while imprisoned. Upon release he started the
process that would ultimately lead to the current contentious position between the UK
and the ECtHR. Hirst had attempted to register as a voter at his local Electoral
Register Office, but was denied. As a result, Hirst brought a challenge to the High
Court questioning the legality of the blanket ban.12 However, Lord Justice Kennedy
ruled that the issue of prisoner disenfranchisement was ‘plainly a matter for
Parliament not for the courts.’13
Consequently, Hirst brought his case before the ECtHR in 2004, raising the
aforementioned violation of Article 3 of Protocol 1 before of a bench of seven
Strasbourg judges. Indeed the Court held that the blanket ban did constitute a
violation of the ECHR. Such a result obliged the then Labour government to appeal
the judgement, desperate to maintain the ban and maintain political credibility. The
first inextricable link between British legal order and politics can be seen here.
The appeal was held on 6th October 2005 in the Grand Chamber of the Court. A bench
held by a majority of twelve to five that the UK’s blanket ban on prisoner voting,
without regard to the nature or gravity to the offence, constituted a violation of Article
3 of Protocol 1 of the ECHR. The ban was regarded as disproportionate to any
legitimate criminal justice aim. The majority ruled that section 3 of the RPA 1983:
12R. v (1) Secretary of State for the Home Department (2) Election Registrations Officers, Ex Parte (1) Pearson (2) Martinez: Hirst v HM Attorney General [2001] EHWC Admin 23913Ibid para. 41
12
‘is indiscriminate. It imposes a blanket restriction on all convicted prisoners in
prison… irrespective of the length of their sentence and irrespective of the nature or
gravity of their offence and their individual circumstances.’14
Further, with regard to public policy and the domestic democratic process, the Grand
Chamber also stated that,
‘there is no evidence that Parliament has ever sought to weigh the competing interests
or to assess the proportionality of a blanket ban on the right of a convicted prisoner
to vote… [i]t cannot be said that there was any substantive debate by members of the
legislature on the continued justification in 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.’15
Due to the nature of the judgement and the finding of a clear violation of the ECHR, it
was clear that domestic reform was needed in this area. The Court did not, however,
give any explicit guidance as to the nature of such reform and left it up to member
states of the Council of Europe to resolve the violation by their own means, through
the ‘margin of appreciation’ of the Member States as established in the The Cyprus
Case.16 17
14 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR para. 82 15 Ibid para. 7916 The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook on the European Convention on Human Rights, 172-197.17 For further reading on the ‘margin of appreciation’ Steven Greer offers excellent commentary in ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights’, available at <http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17%282000%29.pdf>
13
‘it should be for the legislature to decide whether any restriction on the right to vote
should be tailored… It cannot accept however that an absolute bar on voting by any
serving prisoner in any circumstances falls within an acceptable margin of
appreciation.’18
The Grand Chamber also maintained that automatic disenfranchisement based ‘purely
on what might offend public opinion’ cannot be reconciled with the Convention
system.19 This was to be a great source of controversy in the prisoner
disenfranchisement debate, as British public and political opinion was somewhat
allergic to the notion of abolishing the blanket ban and led to accusations that the
Strasbourg court was impinging on the democratic processes of the UK.20 Following
the Hirst judgement, then-Prime Minister Tony Blair told the House of Commons
that,
‘The current position in law is that convicted prisoners are not able to vote, and that
will remain the position under this Government.’21
There was little movement from the UK to reform the blanket ban post Hirst
judgement. The Joint Committee on Human Rights22 appeared to pre-empt more
judicial action in its report published in March 201023 – significant disappointment
was expressed by the committee with regard to the lack of domestic development in
18 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR) para. 4119 Ibid.20 The relationship between the ECtHR and UK shall be discussed in greater detail in Chapter 3 of this thesis with focus on the Parliamentary sovereignty debate.21 LSE Human Rights Futures Project, ‘Prisoner Voting and Human Rights in the UK’, June 2013 <http://www.lse.ac.uk/humanRights/articlesandTranscripts/2013/PrisonerVotes.pdf> accessed on 22nd October 2013 22 Hereinafter referred to as the ‘JCHR’23 Joint Committee on Human Rights, ‘Enhancing Parliament’s role in relation to human rights judgements’, 15th Report of 2009-10, published in March 2010
14
the execution of the Grand Chamber’s judgement in Hirst. Soon after publication of
the JCHR report, the case of Greens & M.T.24 was brought before the Court, again for
a breach of Article 3 of Protocol 1. The applicants, two convicted criminals serving
prison sentences at HMP Peterhead, had posted voter registration forms to the
Electoral Registration Officer for their region from their prison address on 23 rd June
2008. On 12th August 2008, the applicants received word from the Electoral
Registration Officer that their application had been refused due to their status as
incarcerated convicted criminals. Subsequently the Strasbourg court, found on 23rd
November 2010, that the refusal to register the applicants as voters constituted a
violation of Article 3 of Protocol 1 and thus the right to free elections that it
enshrines.25 This was directly as a result of a failure to act upon the Hirst judgement
and facilitate reform of the RPA 1983. The Court stated that the UK must:
(a) bring forward, within six months of the date upon which the present judgment
becomes final, legislative proposals intended to amend the 1983 Act and, if
appropriate, the 2002 Act in a manner which is Convention-compliant; and
(b) enact the required legislation within any such period as may be determined by the
Committee of Ministers;26
This six month period was, however, extended by the UK’s intervention as a third
party in the case of Scoppola v Italy (No. 2).27 Attorney General Dominic Grieve
believed that the Court had not given sufficient consideration to the notion of
24 Greens and M.T. v. The United Kingdom (60041/08) [2010] ECHR 182625 Ibid. paras. 73 - 7926 Ibid. 27 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR
15
‘different approaches between states to the same social issue.’28 The Grand Chamber,
however, stated that:
‘It does not appear, however, that anything has occurred or changed at the European
or Convention levels since the Hirst (no. 2) judgement that might lend support to the
suggestion that the principles set forth in that case should be re-examined. On the
contrary, analysis of the relevant international and European documents… and
comparative-law information… reveals the opposite trend, if anything – towards
fewer restrictions on convicted prisoners’ voting rights.’29
Thus the Court reiterated its position in Hirst and Greens & M.T. on the UK blanket
ban and brought the attention of the Committee of Ministers30 due to stubborn lack of
movement in the direction of reform. The Court’s judgement on Italian
enfranchisement if also of importance to this paper – prisoners in Italy sentenced to
five years or more are disenfranchised for life, with the possibility of applying for re-
enfranchisement following release. Prisoners sentenced to between three and five
years are disenfranchised for five years. The Court found in favour of the Italian
approach, accepting that the Council of Europe Member States should have a wide
margin of appreciation both with regard to the nature of offence resulting in
disenfranchisement, and whether this is subjectively decided by a judge on a case by
case basis or objectively by the general application of domestic legislation. In doing
so the Grand Chamber moved away from the position set out in by the Court in
28 Rowena Mason, ‘Government tells European Judges No Right to Meddle with UK Prisoner Vote Policy’, The Telegraph, 2nd November 2011 <http://www.telegraph.co.uk/news/8865204/Government-tells-European-judges-no-right-to-meddle-with-UK-prisoner-vote-policy.html> accessed on 31st October 201329 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR para 9530 The Committee of Ministers is the body charged with overseeing the domestic implementation of ECtHR judgements as provisioned for in art. 46(2) of the ECHR.
16
Frodl31 which stated a judge was the only person who could decide on the
disenfranchisement of prisoners.
What is very clear from the jurisprudence of the ECtHR is that they consider the right
to vote as a fundamental human right and not a privilege as had been argued by the
UK.
‘This case is of paramount importance not just because of the number of people that it
potentially affects, but because it implicitly answers the question of whether the right
to vote is a fundamental human right deserving of the highest degree of governmental
protection or whether voting is merely a privilege conferred upon citizens which may
be removed in order to achieve the objectives of punishing or deterring crime.’32
The issue of prisoner voting has also highlighted a tension between the ECtHR and
the executive and legislature of the UK. This is evident in the political rhetoric
throughout the saga and also by the stubbornness and unwillingness to reform the
RPA 1983 and bring it into line with Article 3 of Protocol 1 of the ECHR. As this
dissertation intends to evaluate the relationship between the UK and ECtHR in the
context of prisoner disenfranchisement, I believe it is firstly crucial to analyse this
inherent tension. In my opinion this tension can be divided into two. Firstly,
superficial tension emanating from political fear due to public opinion and media
influence. The second level is much more complex and concerns the question of
31 Frodl v Austria (2010) (Application no. 20201/04) [2010] ECHR32 William Ashby Powers, ‘Hirst v. United Kingdom (No. 2): A first look at Prisoner Disenfranchisement by the European Court of Human Rights’, Connecticut Journal of International Law, Vol. 21. No. 30 2006
17
Parliamentary sovereignty and the possible impingement upon democratic process by
the ECtHR.33
1.3 Tension between the United Kingdom and the European Court of Human Rights
33 The Parliamentary sovereignty issue shall be dealt with in much greater depth in Chapter III of this dissertation.
18
On 10th February 2011, six years after the issue of prisoner disenfranchisement first
reared its head in the Hirst judgement parliamentarians from all sides of the House of
Commons spoke to support a back-bench motion in favour of maintaining:
‘The current situation in which no prisoner is able to vote except those imprisoned for
contempt, default or on remand.’34
At the conclusion of the debate 234 of the House were in favour of the motion, with
only 22 opposed. The debate, having been five years in the offing, showed landslide
opposition to the introduction of remedial legislation. Indeed such vociferous political
opposition to the Strasbourg Court’s decisions can be felt not only in the Commons
ballot vote box but also in the rhetoric of prominent parliamentarians. Attorney
General Dominic Grieve stated that prisoners receiving the vote would make him
‘rather angry’35 while Prime Minister David Cameron voiced his disgust towards such
possibilities by saying it makes him feel ‘physically ill.’36 These sentiments are
echoed across the House and it is not surprising that there is a clear view amongst
parliamentarians that the blanket ban remains a crucial provision in electoral
arrangements.
Alongside this clear opposition to reform, an air of negativity towards the notion of
ECHR and broader European membership could be felt from the back benchers.
Hiebert states that:
34 D. Davis, MP, HC Deb., vol. 523, col. 493, 10 February 2011.35 D. Grieve, MP, HC Deb., vol. 523, col. 511, 10 February 2011.36 D. Cameron, MP, HC Deb., vol. 517, col. 921, 3 November 2010.
19
‘The debate is notable not only for MPs’ willingness to repudiate the idea that
Parliament should comply with the European court, but also for encouraging a
broader debate about whether Parliament should withdraw from the Convention.’37
“Euro-scepticism” appears to have gained a foothold in British public opinion and
media in recent years. This has been evident in the Qatada (Othman v. UK)38 debacle
in which fierce opposition was evident to extremist Muslim cleric Abdul Qatada
avoiding deportation to Jordan.39 This issue also generated further discussion over
withdrawal from the ECHR and anger that a foreign court could overrule a decision of
the UK executive which was democratically supported by the legislature. Indeed,
parallels can be drawn with the prisoner disenfranchisement issue. Analysing this
cynically, it may be argued that politicians are engaging in a point scoring exercise,
safe in the knowledge that such opposition to the Strasbourg court and ECHR
membership is greatly supported by public opinion.40
Added to this was the recent furore and fear of mass immigration of Romanians and
Bulgarians following the ending of UK controls on immigration from these countries.
This moral outrage was largely fuelled by politicians41 and the media,42 and plays on
37 Janet Hiebert, ‘The Human Rights Act: Ambguity about Parliamentary Sovereignty’, 14 German Law Journal (2013)38 The Case of Othman (Abdul Qatada) v. The United Kingdom (Application no. 8139/09) 17 January 201239 Media articles such as this highlight negativity surrounding UK ECHR membership: The Daily Mail, Smirking Qatada goes – now for the rest of them: May gets her man, and prmosies quicker deportations in future <http://www.dailymail.co.uk/news/article-2357651/Smirking-Qatada-goes-rest-May-gets-man-promises-quicker-deportations-future.html> accessed on 10th Novemeber 2013 40 YouGov Poll, 10th – 11th February 2011, <http://cdn.yougov.com/today_uk_import/YG-Archives-Pol-ST-results-11-130211.pdf> accessed on 10th December 2013 41 Godfrey Bloom MEP, UK cannot afford Bulgarian and Romanian immigrants, UKIP MEPs 6th November 2012 <http://www.ukipmeps.org/news_642_UK-cannot-afford-Bulgarian-and-Romanian-immigrants.html> accessed on 12th December 2013 42 Leo McKinstry, Mass immigration is destroying our once great nation, The Daily Express 30th December 2013 <http://www.express.co.uk/comment/columnists/leo-mckinstry/451080/Mass-immigration-is-destroying-our-once-great-nation> accessed 15th February 2014
20
the fact that the majority of the general public do not differentiate between the
Council of Europe and the European Union. Europe has been portrayed as the root of
all evil in recent years due to a small number of controversial cases of which the
prisoner disenfranchisement issue is one, this has been seized upon by the media and
has resulted in deep public scepticism of both the ECHR and EU. This has
undoubtedly been leveraged upon by politicians fearful that ‘Euro’ support may spark
a public and media backlash.
Although the Romania and Bulgaria example is more recent and did not rear up in the
eye of the prisoner disenfranchisement storm, it illustrates itself nicely as a prime
symptom of euro-scepticism among the public, politicians, and the media in the
United Kingdom.
The ECHR is undoubtedly a living instrument, adapting organically to the ever
changing sphere of human rights. Dominic Raab, however, states that the ECHR is
now an old document, created at a different period of history and to reflect the needs,
fears and worries of that time.43 Much has changed in Europe and in legal expectation
during the past sixty years and this has arguably been reflected in public opinion. A
YouGov poll conducted in November 2012 found that 63% of respondents stated that
‘no prisoners should be allowed to vote at elections’, with only 9% in favour of
enfranchising ‘prisoners serving sentences of less than four years’.44 Evidently the
public regards the ECHR and the consequences of being a contracting party as out of
step with respectable expectations. Indeed, it is argued this lack of public respect for
43 Dominc Raab, ‘Strasbourg in the Dock: Prisoner Voting, Human Rights & the Case for Democracy’, Civitas: Institute for the Study of Civil Society London, April 201144 YouGov Poll, November 2012 <http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/lmlmhdqllh/YG-Archives-Pol-ST-results%20-%2023-251112.pdf>
21
such Convention obligations is of considerable concern to those in political positions
and goes some way to explaining the belligerent refusal of the UK to align its
domestic legislation appropriately to comply with the ECHR. When viewed in this
wider political context, the UK’s stubbornness in refusing to follow the judgement of
the ECtHR on the prisoner disenfranchisement issue is much more complex than a
moral, human rights question.
While this may go some way in helping to understand the tension felt between the UK
and the ECtHR, it does not offer guidance as to the nature of the UK’s justification for
the continued ban and if these are legitimate arguments for maintaining prisoners
locked out of democracy.
Chapter II – Justifications for Prisoner Disenfranchisement
22
2.1 History, Human Rights, and Penal Populism
Parliament’s stubborn stance can largely be attributed to historical legal theories
relating to the notion of ‘civic death’, the social contract theory, and a strong penal
populist movement that swept through British politics. From a moral and theoretical
perspective, successive governments have held the view that criminals, having
committed serious crimes warranting incarceration, lose the moral authority to vote.
The social contract theory and civic death are often championed by supporters of the
blanket ban. However, is it right to base such important public policy on tradition?
Jago and Marriott answer this question in the negative:
‘temporary disqualification from the franchise has little retributive value beyond
vindictiveness.’45
2.2 Civic Death
45 Robert Jago & Jane Marriott, ‘Citizenship or Civic Death? Extending the Franchise to Convicted Prisoners’, 5 WEB JCLI (2007)
23
The disenfranchisement of prisoners can be traced back to the Forfeiture Act 1870
and is linked to the idea of civic death. This notion has been used heavily as
justification for maintaining the blanket ban, even though it was described by the
Prison Reform Trust as ‘a relic from the nineteenth century.’46 In essence this notion
of civic death related to the removal of the right to vote in elections because of a
failure in civic responsibility due to having committed a crime.47 Thus, the conclusion
can be drawn that the relationship between the individual and that state is drastically
altered when an individual is convicted of an offence warranting imprisonment.
“Civic death” conjures Victorian imagery, with the expulsion from civil society an
integral part – convicts were essentially slaves to the state. The United Kingdom, of
course, has progressed from such times, yet a draconian notion remains a central
justification to prisoner disenfranchisement.
‘The much-maligned Forfeiture Act 1870 is regularly cited as the source of prisoner
disenfranchisement in English law.’48
The 1870 Act denied offenders their citizenship rights and stated that any person
convicted of treason or felony and given a prison sentence of more than twelve
months must lose their right to vote at parliamentary or local elections until they have
served their sentence.49 The Forfeiture Act 1870 was subsequently amended by the
Criminal Law Act 1967, and from here a specific provision was introduced in the
Representation of the People Act 1969 stating that convicted persons were legally
46 Hirst v. United Kingdom (No. 2) (Application No. 7402/01) [2005] ECHR para. 5347 Alec C. Ewald and Brandon Rottinghaus, Criminal Disenfranchisement in an International Perspective, Cambridge University Press 2009, p. 21248 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 201249 Isobel White, ‘Prisoners’ voting rights - in brief’, House of Commons Library Standard Notes SN01764 15 January 2014
24
incapable of voting during the time they were incarcerated in a penal institution.50
Amendments have been made in the form of the Representation of the People Act
1983 and the Representation of the People Act 2000.
The historical roots of the civic death justification hold great importance for many,
who point to its unbroken electoral history to legitimise their stance.
‘the settled view of the British people, through their elected representatives in the
British Parliament, is that prisoners should not have the right to vote.’51
However, upon deeper analysis of this historical justification a different story is told.
Murray argues that:
‘Universal disenfranchisement of prisoners has not been an ever-present feature of
the UK’s electoral system over the last century.’52
There was much change to voting rules in post-World War Two Great Britain. In the
years from 1948 to 1969, all prisoners were enfranchised in some form or another.
The post – war Labour government introduced postal ballots under the Representation
of the People Act 1948.53 This legislation enfranchised prisoners who were no longer
resident at their qualifying address,54 meaning that prisoners who were incarcerated in
prisons outside their constituencies could vote by post. The Criminal Law Act 1967
facilitated the participation of prisoners incarcerated across the UK in Parliamentary 50 Representation of the People Act 1987 s.4 51 P. Hollobone, MP, HC Deb., vol. 523, col. 536, 10 February 2011.52 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 201253 Representation of the People Act 1948, s. 8(1)(e) 54 Ibid. s. 8(4)(b)
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by – elections and local government elections held between January 1968 and April
1969, regardless of the length of their sentence.55 This ended, however, and convicted
prisoners were once again disenfranchised under the Representation of the People Act
1969.56
‘Neither the current opponents nor proponents of prisoner enfranchisement have
appreciated that, for many prisoners, the nineteenth-century system of
disenfranchisement rested on judicial disapproval of prisoners voting rather than on
statutory disenfranchisement.’57
Upon analysing the Forfeiture Act 1870 and also by evaluating the electoral
arrangements in the United Kingdom from 1948 – 1969, it is obvious that the blanket
disenfranchisement of prisoners has not been a mainstay of history, and instead
arguments hinging on the blanket ban being an entrenched electoral norm can be
shown to be weak and lacking serious foundation.
Further adding to this argument’s weakness is an ironic paradox: the Forfeiture Act
1870 placed restrictions on the electoral liberty of convicted criminals serving a
sentence of twelve months or more in prison. It would be interesting to see how such
legislation, if still enacted, would be received by the ECtHR. Indeed it is argued that
due to the provision of disenfranchisement of prisoners serving a sentence of twelve
55 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 201356 Representation of the People Act 1969, s. 457 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 2012
26
months or more, the legislation would be appropriately within the UK’s wide margin
of appreciation, and would thus satisfy Article 3 of Protocol 1 of the ECHR.
‘People are sent to prison to lose their liberty not their identity. The UK’s outdated
ban on sentenced prisoners voting, based on the 19th century concept of civic death,
has no place in a modern democracy and is legally and morally unsustainable.’58
It must also be remembered that there has been great progression in the penal system
– corporal punishment59 and the death penalty60 have been abolished, for example.
Such archaic and drastic measures have been consigned to the annals of history. Why,
then, should an outdated Victorian notion such as civic death have a place in a modern
progressive society? In my opinion, such justification is based around penal populism
and politicians appearing to be hard on crime; however, it may also have been due to
embarrassing political scandal such as convicted prisoner and IRA hunger striker
Bobby Sands being elected to Parliament.61 Regardless, it is clear to see that the civic
death justification has a number of weaknesses.
2.3 The Social Contract Theory
Having first discussed the notion of civic death and its use as justification of the
blanket ban, it is now appropriate to evaluate the social contract theory, which has
also been used to legitimise the position of the UK. The social contract theory, nearly
58 Juliet Lyon, Government Has Six Months To Overturn Prisoners’ Voting Ban, Prison Reform Trust 22nd May 2012 <http://www.prisonreformtrust.org.uk/ProjectsResearch/Citizenship//BarredfromVoting> accessed 31st October 201359 Criminal Justice Act 1967, s. 6560 Murder (Abolition of the Death Penalty) Act 196561 Due to a loophole in the RPA 1969 convicted prisoners were able to stand as a candidate for Parliament. Sands was a member of the Provisional Irish Republican Army serving a 14 year sentence for firearms possession. He was elected to Parliament at the height of his hunger strike and caused significant embarrassment to the British government of the day.
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as old as philosophy itself, proposes that there is an implied agreement between
individuals and the society to which they belong, in which they agree to follow the
norms and respect the laws of that society in exchange for the benefits to which being
part of that society brings.
‘Simply put, contractarian arguments for prisoner disenfranchisement proceed on the
basis that the commission of a crime constitutes an active and deliberate repudiation
of the terms of the social contract. The penalty of exclusion from the franchise thus
attaches to that act which signifies the criminal’s apparent desire no longer to be
considered a member of the state.’62
Such theory has received notable credence throughout history and is evident in the
ancient Platonic dialogue, Crito, where Socrates uses the social contract to illustrate
why he must remain in prison and face the death penalty.63 In Plato’s Republic, the
social contract theory is also represented, though looked upon less favourably.64 In
more recent history, the social contract theory has been advocated by philosophers
such as Thomas Hobbes,65 John Locke,66 and Jean-Jacques Rousseau.67 Indeed, the
theory has received much support from the world of academia and is regarded as a
sound philosophical theory regarding social justice.
62 Robert Jago & Jane Marriott, ‘Citizenship or Civic Death? Extending the Franchise to Convicted Prisoners’, 5 WEB JCLI (2007)63 Plato, Plato in Twelve Volumes, Vol. 1 translated by Harold North Fowler, Harvard University Press; London, William Heinemann Ltd. 196664 Plato, The Republic, translated by Benjamin Jowett, Dover Publications 200065 Thomas Hobbes, Leviathan, Oxford University Press 199666 John Locke, Second Treaties of Government, Barnes and Noble Books 2004 67 Jean-Jacques Rousseau, The Social Contract or The Principles of Political Right, 1762, Translated 1782 by G. D. H. Cole, Public Domain
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In the context of the blanket ban on prisoner voting in the UK, the theory can be
shown to advocate the stripping of the prisoner’s right to vote due to the prisoner’s
failure to uphold the terms of the social contract – i.e. not adhering to the law. Thus,
by adhering to the law and following the duties provisioned by the social contract, the
citizen shall receive certain benefits. What is clear is that in the sphere of prisoner
voting, the social contract theory implies that the vote is a privilege rather than a
fundamental human right. The theory has been an intrinsic part of the UK’s argument
for retaining the blanket ban:
‘Convicted prisoners had breached the social contract and so could be regarded as
(temporarily) forfeiting the right to take part in the government of the country.’68
The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill also point to the
use of the theory in a political and historical context in the UK:
‘This principle—that freedoms are enjoyed unless and until they are taken away by
Law – has deep roots in the common law and in our shared political and
constitutional history.’69
Is this a legitimate justification in the modern day for the removal of a cornerstone of
democracy? Easton states that:
68 Hirst v. the United Kingdom (no. 2) (Application no. 74025/01) [2005] ECHR para. 5069 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 2013
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‘The right to vote has been construed as a revocable privilege rather than a
fundamental right, despite nearly a century of universal suffrage. The Government
has generally favoured granting privileges awarded for good behaviour, rather than
rights, to prisoners, as privileges are not legally enforceable.’70
The vote being touted as a privilege was a constant in the 2011 debate on prisoner
disenfranchisement – David Davis stated that, ‘There is an important point about not
confusing the rights that are properly held by everybody who is a British citizen…with
those much more circumscribed rights that are given to prisoners,’71 with Jack Straw
articulating his view that, ‘the issue before us today – is by no stretch of the
imagination a breach of fundamental human rights. Rather it is a matter of penal
policy…’72
In modern society the right to vote is seen as a fundamental human right; to be
involved in the democratic process is a primary statement of equality and an
irrevocable civic status that all human beings possess. Further to this, prisoners – seen
as the lowest ebb of a population – have a fascinating role in society. By stating in
clear form the terms construed upon them the state is thus recognising the absolute
minimum obligation owed by itself to its citizens. Recognising the human rights of
prisoners represents, ‘a strategy to prevent the erosion of citizen claims against
government, to prevent regressions applied to the least popular of dependent
populations, which might thereafter be applied more broadly.’73
70 Susan Easton, ‘The prisoner’s right to vote and civic responsibility: Reaffirming the Social Contract?’ (2009) Probation Journal vol. 56 no.3 224-23771 D. Davis, MP, HC Deb., vol. 523, col. 493, 10 February 2011.72 J. Straw, MP, HC Deb., vol. 523, col. 502, 10 February 2011.73 M. Tonry, The Future of Imprisonment, Oxford University Press 2006, p. 177
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To cite the social contract theory as justification and thus the franchise as a privilege
in the face of progressive reform is dangerous and risks the UK’s reputation as a
nation that respects and promotes the universality of post Second World War human
rights. In my opinion it can be argued that with the advent of universally recognised
human rights weaknesses of the Social Contract theory became suddenly apparent.
With the signing of the ECHR, of which the UK was a key mover, the ‘ fundamental
and inalienable quality of individual human rights was affirmed’74 and through this
action there was a move away from negative civil liberties of which the Social
Contract theory is an inherent part, towards a more prescriptive system of rights.
There is also an inherent flaw in the Social Contract theory; in the context of prisoner
disenfranchisement it contradicts itself:
‘To argue that those who breach the ‘basic rules of society’ lose the right to vote is to
claim too much. Assuming that prohibitions on assaults, acts of vandalism and thefts
of personal property are among the basic rules of a democratic society, then these
basic rules are broken by all those who commit these offences, including many who
will not go to prison.’75
The use of the Social Contract theory and civic death appear to be somewhat of an
arbitrary justification for the blanket ban. There continued use could see the UK cast
aside as pariah – seen as a European and indeed global neglecter of fundamental
human rights by other contracting parties to the ECHR. 74 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, ‘Draft Voting Eligibility (Prisoners) Bill Report’, Session 2013-14 <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf> accessed on 21st December 201375 Peter Ramsay, ‘Faking Democracy with Prisoners’ Voting Rights’, LSE Law, Society and Economy Working Papers 7/2013, London School of Economics and Political Science & Law Department.
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‘We didn’t just sign up to the European Convention on Human Rights – we more or
less wrote it. For us to fail to respect our international treaty obligations, over an
issue as relatively minor… would be a grossly disproportionate reaction. It would set
an appalling example to other nations and undermine human rights across Europe.’76
The UK’s commitment to enfranchising its citizens regardless of race, sex, colour,
and creed, subject to age tells a much different story of the UK’s view the right to
vote as a human right or a privilege. Prisoners remain citizens in many other ways
whilst they are incarcerated; they receive healthcare, food, shelter, the right to a fair
trial, religious beliefs are respected and accommodated for, they pay tax, and have to
adhere to the law. Grcic argues that the notion of civic death and the social contract
are only applied to win political points.77 Thus, it may be concluded that after analysis
of the historical justifications for the UK’s continued prisoner disenfranchisement,
serious flaws can be found in both the notion of ‘civic death’ and the Social Contract
theory.
76 The Telegraph, Prisoners including sex offenders should get vote, MPs and peers say, 18th December 2013 <http://www.telegraph.co.uk/news/politics/10524151/Prisoners-including-sex-offenders-should-get-vote-MPs-and-peers-say.html> accessed on 1st February 2014 77 Joseph Grcic, Facing Reality: An introduction to Philosophy, 2009, Bloomington: Author House p. 321
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2.4 Reform and Penal Populism
When looking at the 80, 000 population of convicted and incarcerated criminals, it is
apparent that many of them constitute the most disadvantaged members of society.
The prison population is largely made up of those that are illiterate, unemployed,
mentally ill, in financial hardship, or come from abusive background whether physical
or sexual.78 In my opinion it is these members of society that require our
compassionate regard and rehabilitative focus. The aim of punishment, and in
78 Prison Reform Trust, ‘Prison: The Facts’, Bromley Briefings Summer 2013 <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Prisonthefacts.pdf>
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particular incarceration, is to achieve justice for victims of crime and also enable the
offender to see the error of their ways and to prevent re-offending, thus achieving full
integration back into society. Easton argues that the enfranchisement of prisoners
would be incredibly beneficial to their rehabilitation by fostering links with society
and furthering the process of ‘normalisation’.79
‘Prison regimes should treat prisoners less as objects, done to by others, and more as
subjects who can become authors of their own reform and redemption. In that spirit,
the right to vote should be restored to sentenced prisoners.’80
It is clear that the right to vote should not be based on the moral character of a
criminal – it should be an absolute fundamental for all citizens in a modern society.
‘Denying prisoners the right to vote increases their social exclusion and marginalizes
prisoners, denying them the opportunity to put pressure on their MP. Re-
enfranchisement would arguably have the opposite effect, enhancing their citizen
status, giving them a voice and would also further their rehabilitation.’81
Enfranchisement of the prison population would also force politicians to take a more
active role in dealing with issues faced by prisoners, namely mental health, suicide,
education, and homelessness on release. Surely if these issues were dealt with then
recidivism rates would start to fall, as prisoners are better prepared for life outside of
prison and are ready to rejoin society.79 Susan Easton, ‘Electing the Electorate: The problem of Prisoner Disenfranchisement Cases’, (2006), 69 MLR 44380 Catholic Church. Bishops’ Conference of England and Wales, A Place of Redemption: A Christian Approach to Punishment and Prison, Bloomsbury Publishing 2004, p. 281 Susan Easton, ‘The prisoner’s right to vote and civic responsibility: Reaffirming the Social Contract?’ Probation Journal, 2009, 56: 224
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Do the reform options offered by the government address these issues? On 22nd
November 2012, the government of the UK published Voting Eligibility (Prisoners)
Draft Bill.82 The Draft Bill’s publication ensured that the UK had complied with the
deadline set by the ECtHR in the Scoppola judgement; the Draft Bill included three
proposals:
1) A ban from voting for prisoners sentenced to four year or more;
2) A ban from voting for prisoners sentenced to more than six months;
3) A ban for all convicted prisoners – i.e. a restatement of the status quo.83
It is argued that this is a positive step forward and offers a degree of forward
momentum to the abolition of the blanket ban. However, Foster argues that:
‘The first two options will inevitably lead to further challenges on the basis of
proportionality, but the latter option (retaining the status quo) will expose the
government to condemnation with respect to its attitude towards human rights and
threaten its (already brittle) relationship with the Council of Europe, European
Convention and the European Court of Human Rights.’84
However, one might be inclined to argue that the first two proposals set out above
would satisfy the ECtHR, due to the wide margin of appreciation set out in the
82 Draft Voting Eligibility (Prisoners) Bill available at <http://www.parliament.uk/business/committtees//committees-a-z/joint-select/draft-voting-eligibility-prisoners-bill/> 83 Ibid. 84 Steve Foster, ‘The prisoner’s right to vote and the Voting Eligibility(Prisoners) Draft Bill 2012’, 2013, Coventry Law Journal 131
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Scoppola85 judgement. It would have been preferable to add two more proposals that
would have given the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill
much greater scope to explore all avenues for reform of the blanket ban: (i) fully
enfranchising everyone serving a prison sentence; (ii) giving judges discretion
discretionary powers to decide upon disenfranchisement as part of a sentence
proportionate to a crime. The latter of these proposals has been adopted in a number
of Council of Europe countries such as France, Germany, and Belgium.86 With regard
to the former proposal, the UK strikes a lowly character along with Austria, Bulgaria,
Estonia, Georgia, Hungary, and Russia who all have blanket bans.87 The majority of
European countries do enfranchise their prisoners in some form or another – Ireland,
Sweden, Albania, Finland, Denmark, and Spain, to name but a few, involve those
incarcerated in the democratic process.88
Inclusion of these two extra proposals may have enabled a more holistic approach to
prisoner disenfranchisement as the Bill makes its way through the Houses. As shown
above with the examples provided, the proposals are not ludicrous in nature and are
shown to be prevalent amongst Council of Europe Member States. Such proposals
could also address the issue of reform and rehabilitation of incarcerated criminals.
85 Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgement of 22nd May 2012 ECHR86 Prison Reform Trust, ‘Prison Reform Trust Submission to the Joint Select Committee Consultation on the Draft Voting Eligibility (Prisoners) Bill’, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/PRT%20Submission%20Joint%20Committee%20Voting%20Eligibility%20(Prisoners)%20Draft%20Bill.pdf> accessed on 21st December 2013 87 ‘Prisoner votes by European Country’, BBC News, 22nd November 2012 <http://www.bbc.co.uk/news/uk-20447504> accessed on 15th November 2013 88 ‘Prisoner votes by European Country’, BBC News, 22nd November 2012 <http://www.bbc.co.uk/news/uk-20447504> accessed on 15th November 2013
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Such reform, however, still appears to be some way off. Penal policy has undoubtedly
been influenced by public mood and sentiment in order to achieve electoral success.89
Penal populism is still very prevalent; indeed David Cameron ditched the government
green paper ‘Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing
of Offenders’90 after the Guardian criticised it for being too soft on crime.91 Political
parties must appear to be tough on crime – until such thinking changes it is difficult to
see how reform of the blanket ban can be achieved. Once again the intertwined nature
of law and politics in the British legal order is demonstrated. This is further
compounded by the major underlying constitutional issues relating to ECtHR
impinging upon the democratic process of the UK and thus its Parliamentary
sovereignty.
Chapter III - The Broader Constitutional Context
3.1 Parliamentary Sovereignty
In recent years it has become apparent that judgements made by the ECtHR on
controversial topics are fanning the flames of the perception that it is usurping the
position and power of the UK’s democratically elected Parliament.92 This chapter sets
out to examine the broader constitutional relationship between the UK and the ECtHR
89 The Labour Party Election Leaflet, Do you want convicted murderers, rapists, and paedophiles to be given the vote? The Lib Dems do!, 2010 <http://www.electionleaflets.org/leaflets/1882/> accessed on 15th February 2014 90 Ministry of Justice, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, 2010 <http://www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf> accessed on 21st November 2013 91 Simon Jenkins, Cameron mugging Clarke was about fear of the tabloids, not consultation, The Guardian 23rd June 2011 <http://www.theguardian.com/commentisfree/2011/jun/23/penal-reform-tabloid-hysteria> accessed on 21st November 2013 92 BBC News, Lord Judge warns ECHR poses risk to parliamentary sovereignty, 28th December 2013 <http://www.bbc.co.uk/news/uk-25534115> accessed on 30th December 2013
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in the context of the prisoner disenfranchisement debate and achieve an adequate
answer to the sovereignty question. Parliamentary sovereignty may be defined as:
‘Parliament… has, under the English constitution, the right to make or
unmake any law whatever: and, further, that no person or body is recognised
by the law of England as having a right to override or set aside the legislation
of Parliament.’93
Thus, it can be argued that Parliament is the supreme legal authority in the UK, which
can create or revoke any law. Indeed the judiciary cannot overrule Parliament’s
legislation and no Parliament can bind its successor – Parliament’s sovereignty is a
fundamental component of the UK’s un-codified constitution. However, in recent
years there have been developments that complicate the concept of Parliamentary
sovereignty. Parliament has passed legislation that limits the scope of its sovereignty
– these laws reflect both domestic and international political developments. Examples
of such laws include devolving powers to the Scottish Parliament and the Welsh
Assembly, the UK’s entry into the EU with the European Communities Act 1972 and
the corresponding Factortame case,94 the establishment of the Supreme Court in 2009
which ended the House of Lords’ function as the UK’s highest court of appeal and, of
course, the Human Rights Act 1998 and the European Convention on Human Rights.
‘Both EU membership and ratification of the ECHR have exerted a massive impact on
the UK legal system.’95
93 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Elibron Classics 200094 R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL95 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1
38
The enacting of such legislation towards the end of the twentieth century has
undoubtedly put a strain on the Diceyan concept of Parliamentary sovereignty. This
strain has been wholly evident in the prisoner disenfranchisement saga, the rhetoric of
politicians and several Justices of the Supreme Court,96 and of course the recent case
of Vinter v. the United Kingdom.97 There now appears to be a status quo that is quite
different to Dicey’s constitutional theory, and thus there is a need for qualification on
sovereignty due to the numerous international treaties that the UK now finds itself
party to.
‘Parliament's position changed on January 1, 1973 when the United Kingdom became
a member of the European Communities--now the European Union. It is clear, as the
courts recognise, that, while the United Kingdom is a member of the European Union,
the sovereignty of Parliament has been limited.’98
Johnson also argues that there has been much change in this area, mainly due to the
increasing number of constitutionally significant and internationally binding legal
obligations that the UK has willingly entered into.99 In the case of prisoner
disenfranchisement, it is crucial to contextualise the blanket ban against the
development of the ECtHR: ‘the Court has interpreted the Convention in such a way
as to allow it to intervene in areas which were not anticipated by those who drafted
96 Discussion on the role of the Supreme Court and Parliamentary sovereignty has been evident in recent lectures given by Lord Sumption, Lord Judge, and Lady Hale. 97 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) – I shall not focus too greatly on the life-term without parole issue as this dissertation is wholly concerned with prisoner disenfranchisement. However, whole life-terms do provide another important angle to the sovereignty debate. 98 Jack Beatson, ‘Reforming an unwritten constitution’, Law Quarterly Review vol. 126 48, 201099 Nevil Johnson, Reshaping the British Constitution: Essays in Political Interpretations, Palgrave Macmillan, July 2004
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the Convention in the late 1940s.’100 However, where an ECtHR judgement flies in
the face of domestic legislation, politics, and public opinion – the implementation of
that judgement will be of the utmost difficulty. The implementation of the Hirst and
Vinter rulings (or lack thereof) illustrates this exceptionally well.
The Parliamentary sovereignty debate has also been very relevant to the whole life
term cases involving Vinter and McLoughlin and Newell.101 In the Vinter case the
Grand Chamber held that there must be a review mechanism of whole-life terms
without parole, otherwise there is a breach of Article 3 of the ECHR.102 However, in
the McLoughlin and Newell case the Court of Appeal held that the whole-life tariff
regime as provisioned for in domestic legislation is compatible with Article 3.103
3.2 The ECHR as a ‘Living Instrument’
Clearly evidenced through the jurisprudence of ECtHR is the court marking the
ECHR as a ‘living instrument’ that is to be interpreted in light of evolving
circumstances.104 Letsas defines the key features that make up the ‘living instrument’:
‘In the hands of the European Court of Human Rights, the idea of a living instrument
has three main features. First, the Court will take into consideration ‘present-day
standards’ as an important factor in interpreting the Convention... Second, the
100 Prison Reform Trust, ‘Prison Reform Trust Submission to the Joint Select Committee Consultation on the Draft Voting Eligibility (Prisoners) Bill’, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/PRT%20Submission%20Joint%20Committee%20Voting%20Eligibility%20(Prisoners)%20Draft%20Bill.pdf> accessed on 21st December 2013101 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188102 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) para. 130103 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188 para. 29104 Tyrer v. The United Kingdom 2 EHRR 1 (25th April 1987) para. 31; Kress v. France 39594/98 para. 70; Goodwin v. The United Kingdom 28957/95 para 75
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present-day standards that the Court takes into consideration must somehow be
common or shared amongst contracting states… Third, the Court will not assign
decisive importance to what the respondent state (be it its authorities or public
opinion) considers to be an acceptable standard in the case at hand.’105
It has been argued that the ‘living instrument’ interpretation of the Convention allows
for plenty of scope for judicial activism and has attracted criticism.106 Critics have
argued that this doctrine can enable the creation of new rights that can interfere with
parliamentary sovereignty and democratic accountability. In my opinion, the prisoner
disenfranchisement debate highlights the unease of the British judiciary and
politicians towards this interpretation of the Convention. It is clear that the
Convention can at times expand at a greater rate than domestic laws, and thus the
ECtHR is at the forefront of laying down progressive human rights judgements that
mark the minimum standard of what contracting parties must attain. In the context of
prisoner disenfranchisement, political and public opinion is firmly opposed to the
ECtHR judgements in this area and this has meant little pressure has been exerted on
the executive and legislature to introduce reform. Thus, it is argued that the ECtHR is
out of step with British opinion and ideals; this has resulted in the UK departing from
the notion of the Convention as a living instrument, as the Court is seen to be out of
sync with modern societal and cultural change. However, Sir Nicolas Bratza states:
105 Geir Ulfstein, Andreas Follesdal, and Birgit Peters, Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press (2013), p. 107106 The Rt. Hon. The Baroness Hale of Richmond, ‘Beanstalk or Living Instrument?How Tall Can the ECHR Grow?’, Barnard’s Inn Reading, 16th June 2011 <http://www.supremecourt.uk/docs/speech_110616.pdf> accessed on 24th November 2013; The RT. Hon. The Lord Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19th March 2009 <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_2009_JBS_Annual_Lecture_Universality_of_Human_Rights.pdf>
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‘I also believe that the Court has generally been faithful to its claim that its
development of the Convention has been incremental and evolutionary rather than
revolutionary.’107
Ultimately the question of legitimacy is inherently intertwined with the reassertion of
parliamentary sovereignty by British politicians, judiciary, and media. If contracting
parties look upon ECtHR judgements as being irrelevant to cultural and societal
opinion, then these judgements have a greatly reduced degree of legitimacy than if
judgements are made in line with such opinion. The prisoner disenfranchisement issue
and the more recent life-term without parole issue are indicative of this.
Undoubtedly this is a difficult issue to address given the large number of contracting
parties to the Convention,108 however, ECtHR have widened the margin of
appreciation sufficiently as shown in the Scoppola judgement, and the core aim of the
Convention must not be forgotten when analysing this issue; the promotion of Council
goals and not the singular domestic aims of the contracting parties.
‘The Court treated the ECHR as a living instrument, nourishing it to become a large
and fairly consistent body of rights-based principles for the whole of Europe.
Strasbourg’s interpretive ethic is a unique asset for Europe and the best example of a
successful international system for protecting human rights. If the Court continues to
107 Sir Nicolas Bratza, ‘Living instrument or dead letter – the future of the European Convention on Human Rights’, (2014) 2 E.H.R.L.R. 116108 47 countries are contracting parties to the ECHR <http://hub.coe.int/web/coe-portal/what-we-do/human-rights/european-convention?dynLink=true&layoutId=20&dlgroupId=10226&fromArticleId = >
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treat the Convention as a living instrument it will not lose its legitimacy; it will lose
its legitimacy if it doesn’t.’109
The ECHR is concerned with universality,110 and it is important that this is not
departed from in order to appease singular contracting parties. The living nature of the
Convention has been crucial to its progression. However, this interpretation of the
Convention has seen a clash with the Diceyan notion of sovereignty over politically
sensitive ECtHR decisions; this may have led to a conscious reassertion of
Parliamentary sovereignty by the three prongs of UK power.
3.3 A Conscious Reassertion of Parliamentary Sovereignty?
Throughout the debate on prisoner disenfranchisement, it has been wholly evident that
there has been a violation of Article 3 of Protocol 1 of the ECHR. However, the
resistance shown to remedying the accepted on-going breach has been ferocious. With
the issue of the blanket ban, it is clear that the executive and legislature hold the
Representation of the People Act 1985 in much higher regard than their treaty
obligation to adhere to the ECHR under the Human Rights Act 1998.111 As discussed
in the previous chapter, one does not feel this is due to strong justification in historical
arguments on the blanket ban – instead it is argued that these historical justifications 109 Geir Ulfstein, Andreas Follesdal, and Birgit Peters, Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press (2013), p. 131110 European Convention on Human Rights Preamble <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed on 18th November 2013 111 Hereinafter referred to as the ‘HRA’
43
are being used to disguise a wider constitutional movement of a reassertion of
Parliamentary sovereignty against international treaty obligations. Such a reassertion
is not only evident in the scope of the prisoner disenfranchisement debate, but also in
the rhetoric of Justices of the Supreme Court, the issue of life-terms without parole,
and also the parliamentary chamber. It now appears that where a judgement from the
ECtHR runs against domestic legislation or politics, that judgement will be
increasingly difficult to implement. What is wholly clear is that the issue in play is not
the Convention itself, it is sovereignty.
Even before his appointment to the Supreme Court, Lord Sumption was discussing
the tension felt between Parliament and its international treaty obligations, namely the
ECHR and the HRA.
‘parliamentary scrutiny is generally perfectly adequate for the purpose of protecting
the public interest in the area of policy-making. It is also the only way of doing so that
carries any democratic legitimacy.’112
Such sentiment has been echoed in cases where the issue of rights and the ECHR have
been of vital importance. Lord Rodgers showed his concern at the lack of democratic
legitimacy in Strasbourg judge-made law:
112 J. Sumption, ‘Judicial and Political Decision Making: The Uncertain Boundary’, The F. A. Mann Lecture, 2011, p. 18 <http://www.theguardian.com/law/interactive/2011/nov/09/jonathan-sumption-speech-politicisation-judges> accessed on 10th December 2013
44
‘Even though we are dealing with rights under a United Kingdom statute, in reality,
we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken,
the case is closed.’113
In recent times such concern over the perceived judicial activism of the Strasbourg
court has attracted heavy bombardment from the judiciary and executive alike. Lord
Sumption again launched an attack on the Convention and the ECtHR in his lecture
on the ‘Limits of Law’:
‘The Convention, and its judicial apparatus of enforcement, are only necessary in
order to impose changes for which there is no democratic mandate. It is a constraint
on the democratic process… the moment that one moves beyond cases of real
oppression and beyond the truly fundamental, one leaves the realm of consensus
behind and enters that of legitimate political debate where issues ought to be resolved
politically.’114
Lord Sumption may perhaps be the judicial embodiment of the agitation of both
political and public opinion that has been felt throughout the prisoner
disenfranchisement saga. Such judicial unease and criticism, coupled with a lack of
movement to remedy the blanket ban can, in my opinion, be attributed to an attempted
reassertion of parliamentary sovereignty and the UK’s democratic process. Lord
Judge has also voiced his opinion on the debate:
113 SSHD v. AF and Others [2009] UKHL 28, para 98114The Rt. Hon Lord Sumption, ‘Limits of Law’, The 27th Sultan Azlan Lecture, Kuala Lumpur, 20th November 2013, <http://www.supremecourt.uk/docs/speech-131120.pdf> accessed on 2nd December 2013
45
‘In my view, the Strasbourg Court is not superior to our Supreme Court. It is not, and
it is important to emphasise, that it has never been granted the kind of authority
granted to the Supreme Court in the United States of America, authority, let it be
emphasised, which is well established in the constitutional arrangements of that
country. Nevertheless, although not in any sense a Supreme Court of Europe, which, I
repeat, does not consist of a federation of states as the United States of America does,
by using the concept of a “living instrument”, the Court appears to be assuming, or
seeking to assume the same mantle.’115
This rhetoric has shown its substance in the lack of legislative movement to reform
the blanket ban. It is argued this may be attributed to a reassertion of parliamentary
sovereignty; such rhetoric demonstrates conscious confrontation of the Strasbourg
court and an attempt to stand-up to the perceived democratic deficit.
‘The dissent stressed the importance of the Court not infringing upon the Contracting
Parties’ sovereignty and leaving room for a divergence in European practices.’116
The seniority of these legal figures combined with the ferocity of their attack on
ECtHR do, in my opinion, highlight this reassertion. The senior judiciary is, in
essence, firing a warning shot at Strasbourg – protecting the democratic process of
Parliament through their rhetoric.
115 The Rt. Hon Lord Judge, ‘Constitutional Change: Unfinished Business’, University College London, 4th December 2013,< http://www.ucl.ac.uk/constitution-unit/constitution-unit-news/constitution-unit/research/judicial-independence/lordjudgelecture041213/> accessed on 5th December 2013 116 William Ashby Powers, ‘Hirst v. United Kingdom (No. 2): A first look at Prisoner Disenfranchisement by the European Court of Human Rights’, Connecticut Journal of International Law, Vol. 21. No. 30 2006
46
‘recent attacks on the Strasbourg Court and the UK’s ongoing unwillingness to give
effect to the judgment show that the authority of pan-European standards is not
universally accepted.’117
The House of Commons debate on 10th February 2011 also pointed to a reassertion of
Parliamentary sovereignty. As discussed in Chapter I, the vote was a landslide in
favour of maintaining the blanket ban. Nicol considers the tone of the debate:
‘A denial of prisoner voting was by no stretch of the imagination a breach of
fundamental human rights but a matter of penal policy. By such interventions the
ECtHR was setting itself up as a supreme court of Europe with an ever-widening
remit, but with no opportunity for democratic override.’118
Recently, Justice Secretary Chris Grayling has also been openly critical of ECtHR in
the press,119 and a key element of the Conservative Party’s manifesto will undoubtedly
be curbing the influence of the ECtHR and the EU. The Conservatives are engaging
with public opposition to the perceived erosion of British national sovereignty by
those in Brussels and Strasbourg.120
The judiciary can also been seen to have consciously reasserted the sovereignty issue
in three recent cases. First concerning prisoner disenfranchisement was the case of
117 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1 118 Danny Nicol, ‘Legitimacy of the Commons debate on prisoner voting’, P.L. 681, 683 (2011)119 BBC News, Spielmann: UK leaving ECHR would be a ‘political disaster’, 14th January 2014 <http://www.bbc.co.uk/news/uk-politics-25729321> accessed on 5th February 2014 120 The Telegraph, Chris Grayling: Senior judges back me over human rights reforms, 26th March 2014 <http://www.telegraph.co.uk/news/politics/conservative/10724404/Chris-Grayling-Senior-judges-back-me-over-human-rights-reforms.html> accessed on 5th April 2014
47
Chester and McGeoch.121 The case dealt with the blanket ban in ECHR and EU law,
with the Supreme Court dismissing the appeal in respect of EU law. There was no
change as to the ECtHR ruling laid down in Hirst, with Lord Mance rejecting the
Attorney General’s invitation to refuse to apply the Hirst principles.122 Lord Mance
highlighted the limited role of the judiciary in remedying the issue:
‘it is now therefore for Parliament as the democratically elected legislature to
complete its consideration of the position in relation to both RPA section 3 and EPEA
section 8. There is no further current role for this Court, and there is no further claim,
for a declaration or, in light of the incompatibility, for damages which the appellant
Chester can bring.’123
This debate has also been highly pertinent to the whole life term cases involving
Vinter and McLoughlin and Newell.124 In the Vinter case the Grand Chamber held that
there must be a review mechanism of whole-life terms without parole, otherwise there
is a breach of Article 3 of the ECHR.125 However, in the McLoughlin and Newell case
the Court of Appeal held that the whole-life tariff regime as provisioned for in
domestic legislation is compatible with Article 3.126
Indeed it is argued that such judgements given by firstly the Supreme Court and
latterly by the Court of Appeal can largely be attributed to a reassertion of
121 Chester v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 122 Ibid para 34123 Chester v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 para 42124 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188125 Vinter v. the United Kingdom (66069/09) (Eur. Ct. H.R. July. 9, 2013) (Grand Chamber) para. 130126 R v McLoughlin; R v Newall; Attorney General’s Reference (No 69/2013) [2014] EWCA Crim 188 para. 29
48
parliamentary sovereignty and thus a protection of the Rule of Law. The Courts are
protecting the separation of powers by not delving into politically controversial areas,
respecting the opinion of the democratically elected legislature, and thus refraining
from judicial activism.
3.4 Is there a Democratic Deficit?
Even though there is great consternation within the UK over the perceived democratic
deficit of ECtHR judgements, it must be remembered that the parliamentary
sovereignty debate only rears its head when judgements conflict with the UK’s
viewpoint. Generally ECtHR judgements finding a violation against the UK are few
and far between. This argument is reinforced when evidenced against the statistics of
the Court.
49
Figure 1127
As can be seen, 2,519 applications were made against the UK in 2013 with only 5
being declared admissible. In the same year the Court decided 1,652 cases lodged
against the UK; of these cases a violation was found in only 10 of the applications,
constituting 0.61% of all cases.128 Misrepresentation of such statistics is commonplace
in British media paints a damning picture of the ECtHR,129 but what is the reality of
the issue?
127 Analysis of Statistics 2013 – Council of Europe <http://www.echr.coe.int/Documents/Stats_analysis_2013_ENG.pdf> accessed on 1st February 2014128 European Court of Human Rights – UK Case-load 2013 <http://adam1cor.files.wordpress.com/2014/01/4652928-v1-uk-statistics-for-2013-january-2014-pdf-updated-on-30-01.pdf> accessed on 15th January 2014 129 The Daily Mail ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’ <http://www.dailymail.co.uk/news/article-2085420/Europes-war-British-justice-UK-loses-human-rights-cases-damning-report-reveals.html> accessed on 2nd February 2014
50
The statistics tell a much different story to that told by politicians and media.130 It is
clear that the Court can interfere in domestic matters such as the prisoner
disenfranchisement issue. However, in reality the Strasbourg Court can do very little
to enforce domestic implementation of its judgements and thus the sovereignty of
Parliament is not impinged. The Court may make a decision that is not in line with
domestic policy and political and public opinion, however, the implementation of that
decision must be executed domestically by the contravening contracting party. As is
illustrated by the prisoner disenfranchisement issue, implementation of an ECtHR
judgement can be an extremely protracted process, with little movement from the
domestic legislature. Indeed it has been almost nine years since the Hirst judgement
and only now are we seeing forward momentum on the issue.
The government has been stubborn in its duty to implement; this is understandable
given the lack of pressure for reform from Parliament and their need to satisfy the
desires of the British electorate. This highlights the clash between the Convention as a
‘living instrument’ and British legal and political norms. Within this clash it can be
concluded that there is no attack on parliamentary sovereignty, as when the prisoner
disenfranchisement issue is looked at in the context of ECHR cases against the UK it
is abundantly clear that controversy can only be found in a miniscule percentage.
‘What is ‘constitutional’ ultimately becomes a political question, the answer to which
can shift as the ‘deep’ political culture of the country alters over time… the UK
130 Michelle Lafferty, ‘The Strasbourg Court and the UK: dispelling the myths’, Edinburgh Law Review 136, 2014
51
constitution exists in a permanent state of flux and transition: it remains a continuous
work in progress, which is constantly undergoing revision, renewal and repair.’131
What the prisoner disenfranchisement issue does evidence, however, is the intimate
relationship shared by politics and law in the British legal system – shaped, coiled,
and intertwined within one another and unable to be prised apart due to our ever
evolving un-codified constitution.
Conclusion
I have attempted to evaluate the issue of prisoner disenfranchisement and how this
illustrates the relationship between the United Kingdom and the European Court of
Human Rights. It is abundantly clear that prisoner disenfranchisement is a complex
issue, drawing academic commentary on the many legal intricacies it entails. It is
131 Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’’, UCL Institute for Human Rights Working Paper Series, Working Paper No. 1
52
evident that the relationship between the UK and ECtHR is vitally important to the
protection and progression of human rights. The UK, as a strong supporter of such
rights, is crucial to their continued universal progression.
Upon conclusion of Chapter I of this dissertation it is evident that ECtHR have
produced consistent judgements on the issue of prisoner disenfranchisement; this has
been illustrated through the Hirst, Greens & M.T., and Scoppola judgements. What
has also been evident is the belligerent stubbornness of the UK to undertaking reform
in this area. I have attempted to illustrate that this is due to tension which can be seen
on two tiers. The first tier refers to a “shallow” tension that emanates from political
pandering to public opinion and the press. Indeed this tension is fed out of fear that
action could bring dire political consequences for the executive. This is the first part
of the prisoner disenfranchisement debate which evidences the inherently linked
nature of law and politics in the British legal system.
In Chapter II of this dissertation, it becomes apparent that the historical justifications
used by the UK contain many inherent weaknesses. As such the notion of “civic
death” and the social-contract theory are found to be weak justifications for
continuation of the ban.
‘The current ahistorical debate regarding prisoner enfranchisement in the UK, which
has ignored the electoral activity of sections of the prison population in the middle of
the twentieth century, has allowed the opponents of enfranchisement to portray the
ban on prisoners voting as a long-established feature of democracy in the UK, placed
in jeopardy by a ‘foreign’ court.’132
132 Colin Murray, ‘A Perfect Political Storm: Parliament and Prisoner Disenfranchisement’, Parliamentary Aff (2012) 1 – 29, 24 January 2012
53
It is argued that there must be a move away from such justifications in order to
improve the reform and rehabilitation of prisoners. However, it is clear that currently
this is a difficult if not impossible task given the penal populist movement that has
found a foothold in British politics. Again the issue of prisoner disenfranchisement
highlights the intrinsic nature of political influence in our legal system. This
conclusion leads me to argue that the inclusion of two more proposals in the Voting
Eligibility (Prisoners) Draft Bill: (i) fully enfranchising everyone serving a prison
sentence; (ii) giving judges discretionary powers to decide upon disenfranchisement
as part of a sentence proportionate to a crime. In my opinion these additions would
allow for much greater scope for reform.
Chapter III illustrates the broader constitutional debate surrounding prisoner
disenfranchisement. It is necessary to draw on ECtHR judgements outwith the scope
of the blanket ban in order to illustrate the perceived impingement of parliamentary
sovereignty by the Strasbourg court on politically controversial domestic policy. The
life-term without parole issue evidences the wider constitutional debate regarding the
UK and Strasbourg relationship. There has been a conscious reassertion of
parliamentary sovereignty by the British judiciary, legislature, and executive in
response to a democratic deficit in Strasbourg. However, upon analysis of ECtHR
case statistics it becomes abundantly clear that such a reassertion is misplaced and to
the contrary the UK and ECtHR share a successful relationship. It is clear, however,
that there are problems concerning the implementation of politically contentious
judgements.
54
The issue of prisoner disenfranchisement is particularly complex. I argue that this
issue offers a fascinating perspective of the UK and it relationship with Strasbourg.
This ultimately shows the inextricably intertwined nature of law and politics in the
British legal system – a position that is largely unique in the Council of Europe
contracting parties due to the constantly evolving and organic nature of our un-
codified constitution.
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55
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