Monday 21 October 2013

Thoughts on the Supreme Court's decision in Chester and McGeogh

The long term legal importance of a case can sometimes have little to do with the actual question which was before the court at the time.  An example of this may prove to be the Supreme Court's judgment in the recent 'prisoner voting' case:

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)
The case itself concerned two appeals by serving prisoners - (serving sentences for murder) - who had found themselves disenfranchised in elections as a result of the statutory prohibition on serving prisoners voting.
Their appeals had little merit because, on ANY reading of the jurisprudence of the European Court of Human Rights (E Ct HR), individuals convicted of such heinous crimes could be banned from voting - see, for example, Scoppola v Italy (No.3) (2012) 56 EHRR 34 .  The E Ct HR has allowed States a 'margin of appreciation' in this area and, whatever the exact boundaries of that margin, a voting ban on prisoners serving lengthy sentences of imprisonment for very serious offending is well within the margin.

The longer term interest and importance of the case may prove to lie in relation to the position of the Supreme Court of the UK vis-a-vis the European Court of Human Rights at Strasbourg and in relation to the protection of human rights more generally.  The leading judgment was given by Lord Mance with other concurring judgments by Lady Hale, Lord Clarke and Lord Sumption.  Lords Hope, Kerr and Hughes concurred in the overall decision.  Mr Chester based his case (in part) on Protocol 1 Article 3 to the European Convention and also on European Union Law.  Mr McGeogh based his case entirely on EU law.  This post concentrates on the European Convention aspects of the case.

European Union Law:

The Supreme Court held that, so far as EU law was concerned, it was clear that EU law did not grant prisoners a right to vote.  The provisions on voting contained in the EU Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU.   The EU law aspect of this case takes up many paragraphs but the Supreme court's decision on this point is unsurprising. 

The Supreme Court also held that no reference to the Court of Justice of the EU was necessary since the law was clear.

European Convention on Human Rights:

The judgments of Lady Hale, Lord Clarke and Lord Sumption

Lord Sumption's judgment is instructive.  He points out that the UK has an international obligation under article 46.1 of the Convention to abide by decisions of the E Ct HR to which the UK is a party.  The Convention is not, in itself, a source of rights or obligations in domestic law except in so far as effect is given to them by statute.  This is the long standing legal view of the effect of any treaty entered into by the Crown - see [119] in Lord Sumption's judgment.  The Human Rights Act 1998 does not give direct legal effect to interpretations of the Human Rights Convention and is, in this respect, unlike the European Communities Act 1972 which relates to EU law.   Also, the HRA 98 does not require the executive to give effect to such interpretations by statutory instruments.  Rather, the HRA 98 is a compromise designed to make the incorporation of the Convention into domestic law compatible with the sovereignty of Parliament. The scheme of the HRA 98 is that interpretation of the Convention by the Strasbourg court takes effect in domestic law only by decision of the domestic courts - (Note: Lord Sumption said 'English law' but I assume the same applies to Scotland, Northern Ireland)

(Note: It may be that Lord Sumption's analysis overlooked the fact that before the HRA 98 the Convention had some persuasive - but not binding - effect on the domestic courts.  Nevertheless, before the HRA the domestic courts were not commanded by Parliament to 'take in to account' convention rights).

The HRA 98 section 2 requires domestic courts to "take into account" judgments etc. of the E Ct HR.  Lord Sumption then went on to say [121]:

'In the ordinary use of language, to "take into account" a decision ... means no more than to consider it, which is consistent with rejecting it as wrong.  However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases'.  The UK courts have, for many years, interpreted statutes and developed the common law so as to achieve consistency between domestic law and international obligations - so far as they are free to do so.  Parliament would have been aware of this when enacting the HRA 98.  A Strasbourg decision is 'more than an opinion about the meaning of the Convention.  It is an adjudication by the tribunal which the UK has by treaty agreed should give definitive rulings on the subject.  The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of [domestic] law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.'

In support of this, Lord Sumption then cites R v Horncastle [2009] UKSC 14, [2010] 2 AC 373 para 11 (Lord Phillips) and Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 48 Lord Neuberger.

Lord Sumption then carefully reviewed the history of prisoner disenfranchisement and the purported rationale for it.  He concluded that Strasbourg has reached a 'curious position' in which a rather arbitrary line could be drawn somewhere at which prisoners would have to be permitted to vote but the line could not be drawn at the custody threshold itself.   But for the decisions in Hirst and Scoppola, Lord Sumption would have seen the current rule as within 'any reasonable assessment of a Convention State's margin of appreciation.'  However, the contrary view had been upheld twice by the Grand Chamber and it could not be said that any relevant principle of domestic law had been overlooked.  There was no realistic prospect of further dialogue producing a change of heart at Strasbourg.  In such circumstances, the Supreme court could only depart from Hirst / Scoppola only if the disenfranchisement of prisoners could be regarded as a fundamental feature of the laws of the United Kingdom.  That would be an extreme suggestion and, along with Lord Mance, Lord Sumption rejected it.

Lord Clarke's judgment is much less critical of the Strasbourg decisions than Lord Sumption though he agreed that, in these circumstances, the Strasbourg decisions had to be followed.  Lord Clarke pointed out that whatever scheme for prisoner voting is adopted, there will be an element of arbitrariness about it.

Lady Hale had no sympathy at all for the appellants.  Whilst Her Ladyship clearly saw the arbitrariness inherent in the UK's position [see paras 92 to 98], she could not envisage any law which the UK Parliament might eventually enact as granting either of them the right to vote.   Lady Hale considered the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act and noted that s4(2) seemed to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant.   Her Ladyship said that -

'There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims. It is principally for that reason that I would decline to make a declaration of incompatibility on the application of either Mr Chester or (had he made one) Mr McGeoch. Indeed, in my view the courts should not entertain such claims. It is otherwise, of course, in borderline cases.'

Lady Hale's judgment - (probably wisely) - contains no attempt to define when a declaration in abstracto might be appropriate or what might be a 'borderline case.'  (Note: One possibility might be where a pressure group is permitted to raise argument?).

A further interesting dictum appears in Lady Hale's judgment at [90]:  'If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional.'

Of course, the UK does not have a formal constitution or a Bill of Rights of the type envisaged here by Lady Hale but, if it ever does, here is a possible marker as to a future role of the courts.  An argument by former Attorney-General Lord Goldmsith QC that it is somehow undemocratic for the courts to adopt such a stance was dealt with at [88].

Lord Mance

Lord Mance summarised his conclusions at [4]. 
(A) Human Rights Act
In respect of Chester's claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney General's invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 41 ("Hirst (No 2)") and Scoppola v Italy (No 3) (2013) 56 EHRR 19 (paras 34-35) ("Scoppola"), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 - 42).
Lord Mance makes it clear that the UK court has to take into account decisions of Strasbourg but he added at [27]:

'In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.'

As to whether the court should issue a further declaration of incompatibility, Lord Mance said [39]: 

'The incompatibility of RPA section 3 with A3P1 was recognised by the Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration of incompatibility. That declaration was properly made in the case of a convicted person sentenced to five years' imprisonment for being concerned with supply of controlled drugs. It entitled the Government to use the remedial order provisions contained in section 10 of the Human Rights Act. The Government decided not to do this. The issue is now however before the United Kingdom Parliament and under active consideration in the light of the decisions in Hirst (No 2), Greens and Scoppola. Further, it is clear from Greens (para 18 above) and the Attorney General accepts that EPEA section 8 is, in relation to European Parliamentary elections, as incompatible with A3P1 as RPA section 3 is, in relation to United Kingdom Parliamentary elections. A declaration is a discretionary remedy, both generally and under the Human Rights Act 1998, section 4 (4). There is in these circumstances no point in making any further declaration of incompatibility.'

The importance of the case:

The actual importance of the case in the longer term may come about because the judgments have brought together a number of threads relating to the position of the Supreme Court and human rights protection:

1. The European Convention on Human Rights is an international treaty binding the UK in international law.  It has effect in domestic law by virtue of the Human Rights Act 1998 which requires domestic courts to 'take into account' any judgment or decision of the European Court of Human Rights.

2. The court is not bound to follow every decision of the E Ct HR.  In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg.

3. The court will usually follow a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle.

4. Where a matter has been to the Grand Chamber at least once,  it would have have to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for [the Supreme Court] to contemplate an outright refusal to follow such authority.

5. A declaration of incompatibility under the HRA 98 is a discretionary remedy and the court will not issue one where it is pointless as where, for example, a declaration already exists.

Questions / Problems:

Some questions will undoubtedly remain such as: What is a fundamental principle of our law?  That question may yet have to be answered should some Strasbourg decision present itself which is considered to go against such a national principle.

The Justices argue that it is an 'extreme suggestion' to say that the disenfranchisement of prisoners could be regarded as a fundamental feature of the laws of the United Kingdom.  However, the court's judgment fails to identify any clear rationale for the disenfranchisement of prisoners.   The Grand Chamber has acknowledged that disenfranchisement of convicted serving prisoners "may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law" but, as some of the judgments in the UK Supreme Court indicate, permitting prisoners to vote might actually achieve the same aims.  Furthermore, Lord Sumption [126] stated -  'The disenfranchisement of convicted prisoners is not and never has been a form of outlawry, or "civil death" (the phrase sometimes used to describe the current state of the law on prisoners' voting rights).' If the starting point of the argument was that the right to vote is fundamental in a democracy then one might expect disenfranchisement to be exceptionally rare and strictly justified.

It is difficult at this time to forecast whether this case will prove to be beneficial to human rights protection or not.  It may be that the rejection of the Attorney-General's 'forceful submissions' (per Lord Mance) will play into the hands of those who seek to distance the UK from Strasbourg. On the contrary, it may be that the decision to follow the clear line of Strasbourg decisions will set a marker for other areas of dispute and enhance protection for rights.

Meanwhile, 'back at the ranch', the Draft Voting Eligibility (Prisoners) Bill is undergoing pre-legislative scrutiny by a joint committee of both House of Parliament.  The Bill may be seen here.   The Government put forward three options - (a) a ban for prisoners sentenced to 4 years or more; (b) ban for prisoners sentenced to more than 6 months and (c) ban for all convicted prisoners – a restatement of the existing ban.  It was noted that - 'There will no doubt be other possible options for the Joint Committee to consider.'  Option (c) would inevitably lead the UK down the path of deliberate non-compliance with the convention.

In due course, we will doubtless return to this issue into which the present government has put so much political capital with the Prime Minister stating that the idea of prisoners voting made him ‘physically ill’ and with the Attorney-General appearing in person before the Supreme Court to put forward a fresh challenge  to the principles endorsed by the European Court of Human Rights in Hirst (No 2) and Scoppola.

A perhaps over-lengthy analysis - but thank you for reading it.  Obiter J  ~ 21st October 2013.

Other analyses:

The following are well worth reading:

Head of Legal blog - 16th October 2013

UK Human Rights blog - 20th October 2013

UK Constitutional Law Group - 21st October 2013



  1. I notice that Lady Hale refers to the Appellants as Mr Chester and Mr McGeogh. Other judges, at every level from JP to the President of the Supreme Court, please copy. Whatever defendants and appellants have done they are human beings and they should be Mr or Ms as the case may be. Courtesy costs nothing.

    1. Lord Mance referred to 'Chester' and I don't see anything discourteous in his judgment. However, I agree with you that Lady Hale's is the preferable approach.

    2. Interesting how times change. As a student my Professor always addressed me as 'Mr ...'; as soon as I graduated the Mr was dropped and I was addressed by surname alone. This was clearly intended as a mark of equality of status in some respect, and was quite common in professional circles prior to 1960.

  2. ObiterJ: I am sometimes called on to speak to bar students applying for pupillage. They ask how they should prepare for interview. I tell them that the best way to follow developments in the law is by reading your blog, because it is one of very few places where one can read rigorous legal analysis that does ignore not political realities. Posts like this are why I will continue to make this recommendation. Your (considerable) work is not unappreciated.

    1. Thank you. That's good to know. Hope it has helped some to be successful at this difficult time.