A recent judgment of the Court of Justice of the European Union (CJEU), in the case of Delvigne, led to media headlines claiming it was lawful for Britain to ‘impose a voting ban on prisoners convicted of serious crimes’. However, the law regarding prisoner voting in France is substantially different to that in the UK. The French law allowed the removal of voting rights only from those convicted of a custodial sentence of between five years and life imprisonment. By contrast, the UK’s restriction on voting rights applies to all prisoners, irrespective of the length of their sentence. This latest development in the prisoner voting saga also demonstrates that the debate on a British Bill of Rights will have to consider the potential relationship with the EU Charter of Fundamental Rights, as well as the European Convention on Human Rights (ECHR).

UK prisoner voting: the story so far

The debate on whether some prisoners should be able to vote in the UK has seemingly reached a stalemate. The prisoner voting saga began with Mr Hirst’s unsuccessful attempt to claim that the High Court should issue a Section 4 declaration of incompatibility under the Human Rights Act 1998. This failure in the domestic courts resulted in Mr Hirst taking a claim against the UK to the European Court of Human Rights in Strasbourg (ECtHR). The ECtHR ruled in Hirst v the United Kingdom (no2) that the UK’s blanket ban on prisoner voting, as set out in Section 3 of the Representation of the People Act 1983, was incompatible with the right to free and fair and elections as set out in Article 3 of Protocol 1 of the European Convention of Human Rights (ECHR).

Article 46 of the ECHR puts the UK under an obligation, as a signatory of the ECHR, to give effect to the judgments of the ECtHR in any case to which they are parties. This is an obligation of international law, rather than domestic law. Despite this, the Hirst (no2) decision had domestic legal consequences via the Human Rights Act 1998. In the subsequent Scottish case of Smith v Scott, the Registration Appeal Court issued a Section 4 declaration under the HRA 1998 in relation to Section 3 of the 1983 Act and in doing relied on Hirst (no2) as authority. Section 4 declarations, like judgments of the ECtHR, do not affect the legal validity of a statutory provision.

The UK Government has not brought forward legislation to respond to Hirst (no2) or Smith v Scott and so neither judgment has altered the current domestic law affecting prisoner’s voting rights in the United Kingdom.

Delvigne: the EU Charter and the right to vote in elections to the European Parliament

Mr Delvigne was convicted of murder and given a 12 year prison sentence by a French court in 1988. According to the relevant French law, the imposition of such a sentence meant that Mr Delvigne also lost the right to vote for an indefinite period. In 2012, Mr Delvigne was refused the right to vote, and he appealed that decision to a French court on the basis of its incompatibility with the EU Charter of Fundamental Rights, and that French court duly referred the issue of the proper interpretation of the Charter to the CJEU.

In Delvigne, the CJEU ruled that Article 39 (2) of the Charter, which states that ‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot’, constitutes a right of Union citizens to vote in elections to the European Parliament. The CJEU then considered whether the French law’s restrictions on that right met the conditions set out in Article 52 (1). Article 52(1) provides that limitations on the rights in the Charter must be ‘subject to the principle of proportionality’ and ‘necessary and genuinely meet objectives of general interest recognised by the Union’.

The Court explained that the French law met the conditions of proportionality ‘in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty’. The French law allowed the removal of voting rights only from those convicted of a custodial sentence of between five years and life imprisonment.

By contrast, the UK’s restriction on voting rights applies to all prisoners, irrespective of the length of their sentence. The ‘blanket’ nature of the UK’s restriction on prisoner’s right to vote was central to the ECtHR’s ruling in Hirst (no2) that the provisions were not proportionate.

Prisoner voting in EU elections: the UK experience

In the 2013 case of Chester, the Supreme Court considered a challenge to the compatibility of the UK’s restrictions on the right of prisoners to vote in elections for the European Parliament. The Court ruled that the Charter did not grant a right to vote, and even if it did, the most a successful claimant could hope for was a ‘generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law’. Lord Mance explained that they would not be willing to disapply the provision, as this would allow all prisoners the vote, nor would he be willing to devise an alternative scheme, that, he emphasised, would be a matter for Parliament. At the time of the judgment a draft bill on prisoner voting was before Parliament, which led to a report from the joint committee tasked with its scrutiny.

If a prisoner were to challenge the decision to refuse his or her registration to vote in the run up to the elections for the European Parliament, then following Chester and Delvigne, a UK court would be faced with a range authorities to navigate. They could make a reference to the CJEU, as the French court did in Delvigne, or they could simply apply the CJEU’s reasoning themselves. In applying the proportionality test they could then follow or depart from the analogous proportionality reasoning of the ECtHR in Hirst (no2).

On the question of proportionality they might consider the implications of the Supreme Court’s recent analysis of the UK’s constitutional hierarchy in the HS2 case. In HS2, Lord Neuberger and Lord Mance explained that in the event of a conflict between EU law and the UK’s constitutional fundamentals, such as Article 9 of the Bill of Rights 1689, then a court should consider that when Parliament enacted the European Communities Act 1972, it did not necessarily ‘contemplate or authorise the abrogation’ of such fundamentals. This shows that a UK court may have to consider whether the implications of Delvigne would conflict with the UK’s own ‘fundamental principles’.

The EU Charter of Fundamental Rights and the British Bill of Rights debate

The 2015 Court of Appeal case of Benkharbouche & Anor v Embassy of the Republic of Sudan demonstrated that the incompatibility of UK primary legislation with the rights protected in the Charter can result in the disapplication of the relevant UK law. In recent evidence to the Constitution Committee, this potential remedial strength of the Charter, especially when compared to the Human Rights Act 1998, appeared to be in the thinking of Michael Gove, the Lord Chancellor:

“A challenge that the Prime Minister has passed directly to me, is to think hard about whether we should use the British Bill of Rights in order to create a constitutional longstop   similar to the German Constitutional Court and, if so, whether the Supreme Court should be that body. This was partly a consequence, as we got into the nitty-gritty of thinking about the European Convention on Human Rights and the court, of recognising that the European Court of Justice in Luxembourg and the European Charter of Fundamental Rights, which was adopted as part of EU law in the Lisbon treaty, also have an application in domestic law here. It is the case that the German Constitutional Court can, in certain circumstances, say that rulings of the Court of Justice of the European Union may pose problems for their constitution. There are other constitutional courts that fulfil a similar function in other jurisdictions. This is an enormously complex area where we have to tread with care. Therefore, we are in the process of considering how, in our consultation document, we can ask some fair questions that do not foreclose debate.”

Delvigne demonstrates that the debate on a British Bill of Rights will, as Gove highlights, have to consider its potential relationship with the EU Charter of Fundamental Rights, as well as the ECHR.

For more information on the issues raised in this post, there are two House of Commons Library Briefings on this subject: Prisoners’ voting rights: developments since May 2015, which also provides a concise overview of the topic; and Prisoners’ voting rights (2005 to May 2015), which provides a detailed chronological account of the prisoner voting controversy from 2005 to May 2015. The House of Commons Library’s Key Issues for the 2015 Parliament also provides context to the current debate on the HRA 1998, the ECHR and prisoner voting.

Picture credit: Free stock photos of prisons