Chester v Secretary of State for Justice & Anor

A blanket, automatic and indiscriminate disenfranchisement of convicted prisoners is incompatible with Article P1-3. Any restriction remains subject to a wide margin of appreciation, but there must be a discernible and sufficient link between the sanction and the individual’s conduct and circumstances.

Section 3(1) of the Representation of the People Act 1983 could not be read down under section 3(1) of the Human Rights Act 1998 to create a new judicial power to decide each prisoner’s voting entitlement. Strasbourg authority did not require that particular legislative solution. The court should not give an advisory opinion on the content of future primary legislation where Parliament has policy choices. The appeal was dismissed.

The appellant was a serving prisoner whose tariff had expired but who remained detained because the Parole Board considered him dangerous. He challenged his statutory exclusion from domestic and European Parliamentary elections under section 3(1) of the Representation of the People Act 1983, read with section 8 of the European Parliamentary Elections Act 2002.

Burton J dismissed the judicial review claim: [2009] EWHC Admin 2923. On appeal, the appellant sought either a Convention-compatible reading conferring a judicial discretion or a further declaration of incompatibility. The central issue was whether recent Strasbourg decisions required that solution and whether this court should advise on the content of future legislation.

Laws LJ delivered the principal judgment. Carnwath LJ and Neuberger MR agreed. The appeal was dismissed.

1. Convention standard. The court treated Hirst (No 2) as the governing authority. States enjoy a wide margin of appreciation in organising electoral systems, but a blanket, automatic and indiscriminate restriction on convicted prisoners’ voting rights is impermissible. A lawful restriction requires a discernible and sufficient link between the sanction and the individual’s conduct and circumstances. (2006) 42 EHRR 41 was understood in that way.
2. Judicial decision. The wording of Frodl created difficulty because one passage described judicial involvement as preferable, while another called it an essential element. The later decision in Greens & MT v UK proceeded on the footing that Hirst remained governing and left a wide range of policy alternatives to the national authorities. The court concluded that Strasbourg had not required every prisoner’s disenfranchisement to be determined by a judge.
3. Limits of interpretation. The duty under section 3(1) of the Human Rights Act 1998 could not justify adding words to section 3(1) of the Representation of the People Act 1983 so as to confer a new constitutional power on judges. That would be legislation rather than interpretation.
4. Constitutional role. The court should not issue an advisory opinion on the legality or detailed content of as-yet undrafted primary legislation where the Convention leaves Parliament a range of lawful policy choices. Such choices were politically controversial and properly remained with the legislature. The delay in implementing a declaration of incompatibility or a Strasbourg judgment was not sanctionable in the national courts under the Human Rights Act 1998.
5. The separate European Union law argument added nothing because any alleged breach arose only from the domestic legislation’s incompatibility with the Convention.

• Court of Appeal (Civil Division) dismissed the appeal against Burton J’s judgment: [2010] EWCA Civ 1439.
• Administrative Court dismissed the appellant’s judicial review claim: [2009] EWHC Admin 2923.