Reluctantly restoring rights: Responding to the prisoner's right to vote

Human Rights Law Review

Volumn 9, Issue 3, 2009, Pages 489-507

  Foster, Steve ^a  

^a Faculty of Engineering and Computing   (United Kingdom)

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EID: 69949117149     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngp017     Document Type: Article

References (103)

1. -IX; 42 EHRR 41 (GC).
2. For a discussion of the constitutionality of prisoner disenfranchisement, see Lardy, 'Prisoner Disenfranchisement: Constitutional Rights and Wrongs', [2002] Public Law 524;
3. Lewis, '"Difficult and Slippery Terrain" Hansard, Human Rights and Hirst v UK', [2006] Public Law 209;
4. and Easton, 'Electing the Electorate: The Problems of Prisoner Disenfranchisement', (2006) 69 Modern Law Review 443.
5. See Cheney, 'Prisoners as Citizens in Democracy', (2008) 47 Howard Journal of Criminal Justice 134;
6. and Jago and Marriot, 'Citizenship or Civic Death? Extending the Franchise to Convicted Prisoners', (2007) 5 Web Journal of Current Legal Issues.
7. Cheney, ibid. at 134.
8. Sauvé v Canada (No. 2) [2002] 2 FC 117 per Linden JA at para. 99 (FCA).
9. [2001] HRLR 39.
10. The prisoners claimed that Article 14, ECHR, which provides that the enjoyment of the rights and freedoms set forth in the ECHR shall be secured without discrimination on any ground such as birth or other status, had been violated. (emphasis added)
11. See Mathieu-Mohin and Clerfayt v Belgium A 113 (1987);
12. EHRR 1. In this case the ECtHR accepted that the rights enshrined in Article 3 of Protocol No. 1 included the right of individuals to vote and to stand for election.
13. Ibid. at para. 52 stating: The rights in question are not absolute ... there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle excluded byArticle 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness: that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular such conditions must not thwart the free expression of the people in the choice of the legislature.
14. Supra n. 6 at paras 7-9.
15. Kennedy LJ referred to the views of a working group on electoral procedures established to consider changes to electoral law and practice. The Group had accepted the government's view that the franchise should be withdrawn from those serving a custodial sentence. The Representation of the People Bill had been prefaced by a declaration under s.10 of the Human Rights Act 1998 UK that it was compatible with the ECHR.
16. Ibid. at paras 12-17.
17. In addition to H v Netherlands (1974) 1 DR 242, Kennedy LJ also referred to the European Commission decisions in X v Netherlands (1974) 1 DR 87 (where the Commission upheld a prohibition for life imposed on a prisoner convicted of 'uncitizenlike behaviour');
18. and Holland v Ireland (1998) 93A DR 15 (in which the Commission expressed the view that the fact that all of the convicted prisoner population cannot vote does not affect the free expression of the people in the choice of the legislature as required by Article 3 of Protocol No. 1).
19. Raymond v Honey [1980] AC 1 at 10.
20. Supra n. 6 at paras 40-1.
21. The Times, 5 September 2000, noted by Foster, (2000) 5 Journal of Civil Liberties 347.
22. [1999] 3 All ER 400. See Foster, 'Do Prisoners Have the Right of Free Speech?', [2000] nEuropean Human Rights Law Review 393.
23. Ex parte O'Brien and Simms, ibid. at 408 G-H.
24. EHRR 40.
25. See Foster, 'Prisoners and the Right to Vote - the Decision in Hirst v United Kingdom (No. 2)', [2004] European Human Rights Law Review 436.
26. In particular, the applicant pointed to the decision of the Supreme Court of Canada in Suavé v Canada (Chief Electoral Officer) (No. 2) [2002] 3 SCR 519;
27. SCC 68, which had been decided after the decision of the domestic courts in Hirst. The Suavé Case decided that the automatic disenfranchisement of prisoners serving sentences of two years or more was unconstitutional as being in conflict with the Canadian Charter on Fundamental Rights: See infra n. 24.
28. Supra n. 17 at para. 36, referring to the ECtHR's previous judgments in Mathieu and Clerfayt v Belgium,
29. supra n. 8
30. and Matthews v United Kingdom 28 EHRR 361.
31. (1998) 93A DR 15.
32. Supra n. 17 at paras 38-9.
33. Ibid. at paras 40-1.
34. Ibid. at para. 44.
35. The Court referred to decisions relating to the prisoner's right of correspondence: Silver v United Kingdom A 61 (1983);
36. EHRR 347;
37. the right of access to a lawyer and to a court: Golder v United Kingdom A 18 (1978);
38. EHRR 524;
39. freedom of expression: T v United Kingdom (1986) 49 DR 5;
40. and the right to marry: Hamer v United Kingdom (1979) 24 DR 5;
41. EHRR 139
42. and Draper v United Kingdom (1980) 24 DR 72.
43. Ibid. at para. 45.
44. In Suavé v Canada (Chief Electoral Officer) (No. 2), supra n.18, a slim majority of the Canadian Supreme Court decided that the disenfranchisement of all prisoners serving sentences of two years or more, via s.51(e) of the Canadian Elections Act 1985, was arbitrary and thus unconstitutional. The Supreme Court noted that as the Canadian government had failed to identify any particular problems that required denial of the right to vote, it was difficult to conclude that there was a pressing and substantial need for the provision. In the Supreme Court's view the arguments of enhancing civic responsibility and enhancing the general purposes of the criminal sanction by providing an additional remedy were both vague and symbolic making analysis of the justification difficult. Specifically, there was no evidence as to why Parliament felt that more punishment was required for this particular class of prisoner, or what additional objectives Parliament hoped to achieve. Neither, in the Supreme Court's view, did the provisions pass the test of proportionality. The government failed to establish a rational connection between the provision and the government's objectives. Denying inmates the right to vote was more likely to undermine respect for the law and democracy than enhance those values. An important means of teaching prisoners democratic values and social responsibility was lost and a policy permitting elected representatives to disenfranchise a segment of society had no place in a democracy built upon principles of inclusiveness, equality and citizen participation. Further, denial of the right to vote on the grounds of moral blameworthiness was inconsistent with the respect for the dignity of every person, running counter to the idea that laws command obedience because they are made by those whose conduct they govern.
45. Ibid. at para. 46.
46. However in Suavé the minority opinion was that the objectives of disenfranchisement were both pressing and substantial. Although the promotion of civic responsibility might be abstract or symbolic such purposes can be valid and must not be discarded for that reason alone. Furthermore, it was a valid objective for Parliament to develop appropriate sanctions and punishments for serious crime. The legislation was rationally connected to those objectives and the impairment of the right was minimal, applying only to serious offenders and particular categories of conduct. The minority therefore concluded that the objectives and salutary effects of the law outweighed the temporary disenfranchisement of serious criminal offenders, and that, since the legislation raised questions of penal philosophy and policy, judicial deference was appropriate.
47. Ibid. at para. 47.
48. Ibid. at para. 48.
49. Ibid. at para. 49.
50. Ibid. at para. 51.
51. Supra n. 1.
52. Ibid. at para. 59.
53. Ibid. at para. 69.
54. Ibid. at para. 71.
55. Ibid. at para. 74.
56. Ibid. at para. 77. In addition, there had been no substantive debate by the legislature on the continued justification of the policy in light of modern day penal policy and current human rights standards.
57. Thus, Parliament should ensure that there is some correlation between the offender and offence on the one hand and the sanction of disenfranchisement on the other. This will require Parliament and, most likely, the courts appraising the seriousness of the offence and its relevance to possible disenfranchisement. The government's response and resulting consultation documents are detailed below.
58. 46 EHRR 41 (GC).
59. 44 EHRR 21.
60. Voting Rights of Convicted Prisoners Detained within the United Kingdom - the UK's response to the Grand Chamber of the European Court of Human Rights judgment in Hirst v United Kingdom, Consultation Paper CP39/06, 14 December 2006, available at: http://www.dca.gov.uk/consult/ voting-rights/cp2906.pdf [last accessed 22 June 2009].
61. The paper states that the government wishes to hear the full range of opinions provided, of course, one is not in favour of total enfranchisement (ibid. at para. 57).
62. The government's initial view on the threshold was one year (ibid. at para. 60).
63. See Lazarus, 'Conceptions of Liberty Deprivation', (2006) 69 Modern Law Review 738.
64. [2007] CSIH 9.
65. Ibid. at para. 56.
66. Ibid. at para. 55.
67. Ibid. at para. 43.
68. Article 46(1), ECHR provides: 'The High Contracting Parties undertake to abide by the final judgment of the Court in any case where they are parties.'
69. This was an issue identified by the Joint Committee on Human Rights, see discussion infra at 15-16.
70. Joint Committee on Human Rights, Monitoring the Government's response to Court's Judgments Finding Breaches of Human Rights, 28 June 2007, HL 128/ HC 728.
71. Ibid. at para. 71.
72. Ibid. at para. 72.
73. Ibid. at para. 74.
74. Ibid. at para. 78.
75. The Committee also noted (at para. 76) that the non-governmental organisation 'Liberty' was concerned that the consultation paper proposed only minor reforms and explicitly ruled out full enfranchisement as an option. They considered that the government's consultation 'seems designed to do little more than ensure that ... the UK's approach would be considered to be within its 'margin of appreciation.'.
76. Ibid. at para. 79.
77. UNTS 171. Concluding Observations of the Human Rights Committee regarding the United Kingdom of Great Britain and Northern Ireland, 6 December 2001, CCPR/CO/73/UK, at para. 28.
78. See 'Give prisoners the right to vote', infra n. 59.
79. Joint Committee on Human Rights, Monitoring the Government's Response to Human Rights Judgments: Annual Report 2008, 31 October 2008, HL 173/HC 1078.
80. Ibid. at para. 62.
81. Ibid. at para. 49.
82. See 'Give prisoners the right to vote, says UN', The Guardian, 19 September 2008.
83. Supra n. 56 at para. 50.
84. Ministry of Justice, Hirst v United Kingdom (No 2);
85. Note to Committee of Ministers, 14 March 2008, available at: http://www.publications.parliament.uk/cgi-bin/search.pl [last accessed 22 June 2009].
86. Ibid. at para. 2.
87. July 2007, Cm 7170.
88. This aspect of the Green Paper has subsequently been discredited by the Joint Committee's recent report on a 'Bill of Rights for the United Kingdom', 21 July 2008, HL 65-1/HC 150-1. The Green Paper resulted in a document, Ministry of Justice, Rights and Responsibilities: Developing our constitutional framework, March 2009, Cm 7577, which did not address the issue of prisoner enfranchisement. However, Chapter 2 of the Paper stresses the importance of rights being tied to civic duties and responsibilities and the recognition and protection of others' rights.
89. Ministry of Justice, supra n. 61 at para. 5.
90. Ministry of Justice, supra n. 61 at para. 6.
91. Supra n. 56 at para. 63.
92. See, respectively, the Electoral Amendment Act 2006 and the Civil Registry (Amendment) Act 2006.
93. For an analysis of the Irish legislation, see Behan and O'Donnell, 'Prisoners, Politics and the Polls', (2008) 48 British Journal of Criminology 319.
94. Supra n. 56 at para. 58.
95. Voting Rights of Convicted Prisoners Detained within the United Kingdom: Second stage consultation, 8 April 2009, Consultation Paper CP6/09.
96. See 'Fresh move to give prisoners the right to vote', The Daily Telegraph, 30 March 2009.
97. Of the 88 responses to the first stage, 47 per cent argued for total enfranchisement (an option not available to respondents) and 27 per cent argued for the continuation of total disenfranchisement (supra n. 70 at 14). These responses limited the range of views on the government's specific proposals on how enfranchisement could and should be related to the length and type of sentence.
98. Supra n. 70 at 23.
99. Ibid.
100. Ibid. at 24.
101. Ibid. at 25.
102. See accompanying text to supra n. 28.
103. Supra n. 70 at 25.