We have commented previously on the issue of prisoners being denied the vote, partly in the context of the observation by member states of human rights generally (which, obviously, include Article 9) and conformity with the ECHR and partly from the perspective of voting as part of the process of reintegrating offenders into society. The UK Supreme Court has today dismissed the appeals in R (o a o Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council & Anor  UKSC 63 and has declined to seek an advisory opinion from the European Court of Justice.
In the leading judgment Lord Mance JSC summarised his conclusions as follows:
“(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 849 (“Hirst (No 2)”) and Scoppola v Italy (No 3) (2012) 56 EHRR (paras 34-35) (“Scoppola”), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39-42).
(B) European law
a. In respect of McGeoch’s and Chester’s claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely (paras 46-47, 58, 59, 63-64 and 68).
b. Had European law conferred any right to vote on which McGeoch and Chester can rely:
i. the only relief that might have been considered would have been 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 but that would not have appeared appropriate in the particular cases of Chester and McGeoch (para 72);
ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole (para 73);
iii. it would not have been possible to read the Representation of the People Act  section 3 or the European Parliamentary Elections Act  section 8 compatibly with European law (para 74);
iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament (para 74);
v. neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8 (paras 82-83).
(C) European Court of Justice
The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law (para 84).
(D) Both appeals fall therefore, in my opinion, to be dismissed (para 85)”.
In her concurring judgment Lady Hale DPSC described vote for prisoners as “an emotive subject” (para 86). While she had “some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate” she acknowledged “how difficult it would be to devise any alternative scheme which would not also have some element of arbitrariness about it” (para 98). That said, she had no sympathy whatsoever for the appellants (para 99).
Lord Clarke JSC concurred, but in a brief judgment raised the point which worries everyone who is concerned about the current blanket ban. Commenting on the Strasbourg ruling in Hirst (No. 2) he pointed out (at para 109) that the automatic ban
“… applies automatically to all prisoners irrespective of the nature and gravity of the relevant offence or the individual circumstances of the particular offender. It thus applies to those sentenced to very short sentences and operates in an arbitrary way for two reasons. First, it applies in the same way to a person sentenced to 28 days or 28 years. Yet there is clearly an enormous gulf in terms of culpability between those sentenced to 28 days for, say, persistent shoplifting and those sentenced to 28 years for a very serious offence. Secondly, whether a person loses the right to vote depends upon the chance that the relevant person happens to be in prison on a particular day, by comparison perhaps with a co-defendant who received an identical sentence but is on bail pending appeal. Moreover, it is difficult to see how it can be proportionate to deprive a person of a vote which is relevant to the governance of the state for a period of five years in circumstances where that person may be in prison for no more than 14 days”.
He concluded (at para 110) that there was “much to be said for the Strasbourg Court’s approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban”.
So: back to Parliament – which, on past form, will do nothing about the issue. But Lord Clarke’s point will not go away: is the loss of the right to vote as a result of 28 days imprisonment for a very minor offence in any way comparable to loss of that right for someone serving a life sentence? (The broader question as to whether it is a sensible use of resources to imprison anyone for 28 days in the first place is beyond the scope of this post.)
See also Adam Wagner’s post on UKHRB: perspicacious as always.