It would clearly be absurd to permit a Parliament whose sovereign law-making power was justified on democratic grounds to exercise that power to destroy democracy, as by removing the vote from sections of society.
Allan ‘Parliamentary Sovereignty: Law, Politics and Revolution’ (1997) LQR 443, at 449
The highly expected Supreme Court ruling in R (Chester) v Secretary of State for Justice and McGeoch v Lord President of the Council on prisoner voting in the UK was delivered on October 16th, 2013. The facts are well known, so may be mentioned here with the utmost brevity: Section 3(1) of the Representation of the People Act 1983 sanctioned a blanket disenfranchisement of prisoners in the UK. In 2005, the Grand Chamber of the European Court of Human Rights, in Hirst v UK (No 2), found that this restriction violated Article 3 of Protocol No 1 to the European Convention of Human Rights. Following the ECtHR ruling, it was expected by some that the British government would ‘do as it’s told’ and amend the law so that a blanket ban no longer applied. This prediction did not materialise. Against this tense legal and political background came the Supreme Court’s ruling which denied the claim that a right to vote for prisoners could be found under EU law, to the elation of many, but to the frustration and disappointment of quite a few. The Court’s ruling and highly disparate arguments are examined below, with only some brief mention of the principled issues involved, where necessary (for an excellent critique of the justifications for disenfranchisement, see here for a blog version, and here for an extended academic inquiry).
1. On Prisoners’ Right to Vote in Britain, or Fishing Quotas in Europe?
Reading the reporting and commentary following the ruling, one could think that the central issue at stake was Britain’s sovereignty vis-à-vis the EU with respect to, say, fishing quotas as opposed to one of the most fundamental rights of citizenship. The Prime Minister applauded the Supreme Court for making it clear it has “nothing to do with the European Union and I think we can all rejoice at that result”. Charitably, we may assume that Mr Cameron and the “cheering MPs” were not rejoicing and celebrating their success in denying fellow citizens a fundamental right. Rather, it was seen as a test case for Europe’s hold over Britain. This was made clear in the Supreme Court’s opening (and major) speech, delivered by Lord Mance. But one may suggest that there is a paradoxical air to the whole debate. Though Lord Mance’s assertion that EU law does not grant an individual a right to vote is far from obvious, let us assume that such is the case. Is that where our trail ends? If British citizens do not, arguendo, have an acknowledged right to vote for the British Parliament under EU law, and accepting that there is ‘no point’ in making declaration of incompatibility under the Convention [para 39], does that mean that they have no right under the common law either? Reading Lord Mance’s speech, and in particular – the political debate that followed, one could not be faulted for finding that such is the case. The paradoxical aspect, therefore, is that in the effort to assert Britain’s autonomy vis-à-vis the EU, it exhibited a very deep dependency. Only a few weeks prior to the case reviewed here, the Supreme Court handed down a ruling (Osborn v the Parole Board) asserting British independence in the developing rights under the common law. As it so happens, the focus of the discussion also related to prisoners’ rights (under the ECHR, rather than EU law): to privileged correspondence, to procedural justice and to protection against torture. The Court in Osborn then moved to criticise the appellants for supposing that ‘because an issue falls within the ambit of a Convention guarantee, it follows that the analysis of the problem should begin and end with Strasbourg case law’ (at ). It therefore seemed almost natural to expect some discussion in Chester of the nature of the right to vote under the common law, its extension, the ability to deny it to particular groups, and the constitutional limits that should apply, under the common law. This discussion was notably absent.
2. Court of Public Reason or of Public Opinion
Lady Hale’s speech, with which Lord Hope and Lord Kerr agreed, opened with the surprising information that 63% of respondents in a 2012 YouGov poll agreed that ‘no prisoners should be allowed to vote’, 19% said that those serving less than six months should be allowed to vote, and 8% stated that all prisoners should be allowed to vote. The surprise, of course, is not that such is the distribution of opinion but, rather, that such data finds itself into a Supreme Court ruling. Apart from giving legal realists in academia an excellent example of the tight connection of law and politics, what purpose could that data serve? Lady Hale continues by clarifying, admirably, that ‘the views of the public and Parliamentarians is not the end of the story. It is about safeguarding the rights of minorities, including unpopular minorities’ (para 88) and that it is the Court’s role and duty to protect the disenfranchised and the excluded (para 90). Moreover, her Ladyship places the criminal process within a wider social and economic context, noting that ‘exactly the same crime may attract an immediate custodial sentence and disenfranchisement at one time or a suspended sentence without disenfranchisement at another … All this suggests an element of arbitrariness in selecting the custody threshold as a unique indicator … to justify exclusion from the democratic process’ (para 95-96, emphasis added). Lord Clarke echoes this sentiment by highlighting the ‘disproportionate and indiscriminate’ nature of the blanket ban, which could apply to prisoners sent to no more than 14 days, but happen to be incarcerated on election day. And yet, turning to the individual litigants, for whom she has ‘no sympathy’ (para 99), Lady Hale (and, it would seem, Lord Clarke) find that neither EU law nor the Human Rights Act offers them a remedy. In other words, even were the UK to change its law in accordance with the model, approved in Scoppola No 3, that limits disenfranchisement only to prisoners guilty of serious offences, no claim to a remedy would have been offered to these particular claimants. Many, including the present writer, would find this result unfortunate, but there is no doubt that such a policy is well within the margin of appreciation accorded by the ECtHR, and considered proportionate in the current legal climate. However, this is not the UK’s government current position. I would, however, like to stress a different point. Responding in legal realist kind, one could argue that Lady Hale and Lord Clarke’s positions, while reasonable in their own right, may lead to an effective denial of all prisoners’ right to vote, including those sentenced to minimal periods, for crimes that are far from heinous. The reason is that, while obviously being far from sympathetic, it would be a prisoner serving an extensive prison sentence who will have the time, energy and motivation to challenge his or her disenfranchisement. If such a prisoner would be routinely denied because of the obnoxious acts that placed him there, the effect on all prisoners’ rights to vote would be fatal.
3. A Serious Right, or a Walk in the Park?
Finally, Lord Sumption’s speech (to which Lord Hughes agreed) is in considerable tension to that put forward by Lady Hale. First, insofar as the subject of the petition is concerned, Lord Sumption states that ‘the present issue has nothing whatever to do with the protection of minorities’ (para 112); and with respect to the denial of the right to vote, Lord Sumption declines ‘to regard it as any more significant than the fact that [their short period of imprisonment] may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer’. With due respect, both limbs of the argument are problematic and far-reaching. Taken to their logical conclusion, the first argument would seem to suggest that prisoners’ rights in general should not be protected, simply because they are not an immediately identifiable racial, ethnic, religious, or sexual minority. This could not be what his Lordship had in mind, but it is difficult to decipher the alternative purpose of stating that prisoners are not a ‘protected minority’. The statement gains additional force from its contrast with Lady Hale’s assertion of the Court’s role to protect unrepresented minorities, including prisoners. The second limb, which dismisses the importance of the right to vote in general is obviously crucial if taken literally. We find, then, that the Supreme Court’s most direct reference to the right to vote in this judgment is one that minimizes its importance.
But while the vote seems unimportant for the prisoner, Lord Sumption asserts that the denial of the vote is important for society. His Lordship rejects not only the ancient rationale of ‘civil death’ for disenfranchisement, but also the more modern constructions of ‘social contract’ (paramount in Gonthier J’s dissenting opinion in Sauvé v Canada(2)) as well as the traditional justifications for punishment, which are sometimes transferred to justifications for disenfranchisement. Instead, Lord Sumption stresses the demonstrative function of criminal law, as a reassertion of society’s values and the importance of the rule of law, which the prisoner has offended. His or her acts justify not only the physical denial of his liberty, but also the temporary symbolic exclusion from society, through disenfranchisement. I shall say something about legal and social exclusion in closing, but here would like to point out the danger that lies in attaching too great importance to what is often the contingent nature of criminal law. British law is replete with examples of acts that were deemed criminal and, from a contemporary perspective, sway between the amusing (as in the case of sumptuary laws dictating fashion), the confusing (it was an offence to keep more than ‘one lunatic’ in a house without a licence) and the obnoxious (criminalising homosexuality would be an obvious candidate). There is no need, therefore, to be a moral relativist through and through to suggest that some caution should be used before attaching moral superiority to the social norms of the day, even if they are entrenched (for the time being) in a criminal statute.
Concluding Thoughts: poverty and crime
It is worth remembering, perhaps, that Judith Shklar identified the voting as one of the two foundations of (American) citizenship. She writes (at p 64):
To be a recognized and active citizen at all he must be an equal member of the polity, a voter, but he must also be independent, which has all along meant that he must be an “earner”, a free remunerated worker, … neither more nor less.
The link that Shklar makes here between earner and voter, both foundational elements of citizenship, is illuminating. Not only because of the well-documented causal connection between poverty and crime; or even the unequal treatment that the rich and poor receive from the criminal justice system. Rather, in the particular context of British social and legal history, the Poor Laws denied the right to vote to poor house inhabitants, on the basis that they were dependent on public support, while true citizens, deserving of the right to vote, had to be independent. Just like criminals today (and perhaps – like the poor of today), the poor of Victorian England were extremely unpopular. They were identified as personally responsible for their own predicament, and could rely very little on the legal system to uphold their rights. For law, as Shklar identifies, is not only the source of possible inclusion, but may also be the foundation of further exclusion.
One may conclude by hoping that, if a more agreeable prisoner brings British policy to the test again, their Lordships will take this insight into account.