Prisoners’ votes: the government triangulates

Today has seen the failure in the Court of Appeal of the judicial review in Chester v Justice Secretary, a case that always was hopeless.

More importantly, the government intends to give the vote to all prisoners serving less than four year sentences; and to give trial judges the power to ban even these from voting in appropriate individual cases.

Obviously this will finally discharge the government’s clear obligation to change the law to comply with the judgment in Hirst v UK, in which the European Court of Human Rights ruled that our current law, which disenfranchises all convicted prisoners, breaches Article 3 of Protocol 1 to the European Convention on Human Rights. That obligation became all the more pressing following the Court’s very recent “pilot judgment” in Greens & MT v UK ordering the UK to bring forward legislation to comply with Hirst within six months. Britain will be out of the dock, and not at risk of the embarassment of being the first state to face new “infraction proceedings” in Strasbourg.

The difficulty the government faced was how far to go. On the one hand, some people urged a “minimalist” approach to implementing Hirst, allowing a small number of less serious offenders to vote so as merely to remove the “blanket” ban on prisoners voting which was the heart of the trouble. On the other hand, the post-Hirst case of Frodl v Austria seemed clearly to threaten that any solution would be unsatisfactory unless it gave the vote to the great majority of prisoners, with only a judge able to take it away in rare individual cases involving, for example, election fraud. That was a judgment I criticised severely in an earlier post.

But the ECtHR seems to have realised it might have gone too far. At least, in Greens (see paras. 112-114) it seemed to step back a bit from Frodl and make clear the government had a range of policy options, while of course pointing out that it’s likely to have to scrutinise whatever is chosen in due course.

The government’s taken advantage of that apparent softening of approach by in effect triangulating: its chosen policy is a significant rather than minimal change from the status quo but falls a long way short of where Frodl seemed to point. Presumably ministers and their lawyers think their new four-year cut-off is the sort of “bright line” policy (setting a clear principle in law, rather than a complex system of exceptions or case-by-case discretion) that stands a reasonable chance of withstanding the challenge that is bound to come once more in the domestic courts and in Strasbourg.

A couple of last words, since I mention the domestic courts. First, while in Chester today Laws LJ and his Court of Appeal colleagues have undoubtedly reached the right decision – not difficult, that, in this easy case – I really wish they’d fully reasoned through how section 3 of the Human Rights Act works and why it can’t be used to “reinterpret” section 3 of the Representation of the People Act 1983 so as to give prisoners the vote or to read in a role for judges. The principles laid down  in the leading case, Ghaidan, are quite clear but widely misunderstood, and unless judges apply them expressly I fear interpretation under the Human Rights Act will remain mysterious even to lawyers.

Second, it’s worth mentioning the issue of prisoners’ votes is not one in which domestic judges under the Human Rights Act have undermined government policy. On the contrary, while properly applying the case-law of the European Court, according to which our legislation had to be declared incompatible with the ECHR, they left the problem entirely to Parliament to solve, refusing attempts to reinterpret the legislation (as In Chester today) or intefere with elections. Whatever you think of all this, it ain’t the fault of the Human Rights Act.