Chester, R (on the application of) v Secretary of State for Justice & Anor

A blanket disenfranchisement of convicted prisoners may be incompatible with Article 3 of Protocol 1, but that conclusion does not determine which categories of prisoners must be enfranchised under replacement legislation. Courts should not read down legislation where doing so would substantially alter a fundamental legislative feature, require a choice between competing social-policy options, or amount to judicial legislation. Nor should courts grant relief designed to influence the introduction or content of proposed legislation before Parliament. The question whether post-tariff life prisoners should vote involved competing rational policy choices and was for Parliament, not the court, to determine.

The claimant was a post-tariff life prisoner detained at HMP Wakefield. He challenged his exclusion from the franchise under Representation of the People Act 1983, section 3, and consequently from European elections under section 8 of the European Parliamentary Elections Act 2002. The claim followed the Grand Chamber’s decision in Hirst v UK (No 2) [2006] 42 EHRR 41, which found the blanket ban incompatible with Article 3 of Protocol 1.

The claimant sought reading down, declarations of incompatibility and relief directed to the Government’s proposed replacement legislation. The central issues were whether the court could select a category of prisoners for enfranchisement and whether it could require proposed legislation to include post-tariff lifers.

1. Claim dismissed. The court refused all declarations, reading-down relief and relief directed to proposed legislation.
2. Reading down section 8 of the European Parliamentary Elections Act 2002 was not appropriate. The statutory scheme deliberately maintained parity between the UK and European electoral franchises, subject to limited express exceptions. Adding either all prisoners or post-tariff lifers would substantially alter that feature and require the court to choose between competing legislative policies. That would exceed interpretation and amount to legislation.
3. The court accepted that section 3 of the Representation of the People Act 1983 was incompatible with the Convention, following Hirst v UK (No 2) [2006] 42 EHRR 41. A further declaration was nevertheless unnecessary because Smith v Scott [2007] SC 345 had already made one and the Government was consulting on replacement legislation.
4. The court treated the reasoning in Smith v Scott [2007] SC 345 as applying with equal force. The court could not make an uninformed choice among possible categories of enfranchised prisoners. Hirst had left the means of compliance to the legislature and had not required enfranchisement of post-tariff lifers.
5. Relief intended to influence the introduction or content of legislation was constitutionally inappropriate. Introducing a Bill formed part of parliamentary proceedings, and section 6(6) of the Human Rights Act 1998 excluded failure to introduce or lay proposed legislation from the relevant public-authority act. The court also relied on the constitutional principles explained in R (Wheeler) v Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 1409 (Admin).
6. Even apart from constitutional restraint, the claimant had not shown that excluding post-tariff lifers was necessarily incompatible with the Convention. The issue involved sensitive social policy and more than one rational choice. The application was dismissed. The claimant was ordered to pay the defendants’ reasonable costs, subject to section 11 of the Administration of Justice Act 1989.

First instance judicial review decision. No prior appellate decision is stated in the judgment.