R (Chester) v Secretary of State for Justice and another; [2009] WLR (D) 316

HUMAN RIGHTS — Right to free elections — Interference with — European Court of Human Rights and United Kingdom court finding United Kingdom legislation imposing blanket ban on prisoners’ right to vote incompatible with European Convention on Human Rights — United Kingdom government in process of laying proposals for change before parliament — Whether court entitled to exercise discretion to grant further declaration of incompatability — Human Rights Act 1998, s 3(1), Sch 1, Pt II, art 3

R (Chester) v Secretary of State for Justice and another

[2009] WLR (D) 316

QBD: Burton J: 28 October 2009

Where a United Kingdom court had made a declaration of incompatability pursuant to s 3(1) of the Human Rights Act 1998 in respect of legislation and where the Government was in the process of putting forward legislation to Parliament and no further vindication of the claimants rights was necessary, the court would not exercise its discretion so as to make a further declaration of incompatability in respect of the same or similar legislation.

Burton J so held in the Administrative Court of the Queen’s Bench Division, when dismissing the claim of the claimant, Peter Chester, a prisoner at HMP Wakefield, who had served the minimum term of a life sentence for the rape and murder of his niece, but who had been detained in prison after a Parole Board finding that he was too dangerous to release into the community (a post-tariff lifer). The claimant’s claim was for judicial review of the decisions of 5 August 2008 and 14 December 2008 of the first defendant, the Secretary of State for Justice, and the decision of the 28 April 2005 of the second defendant, Wakefield Metropolitan District Centre, refusing to permit the claimant to vote in the Parliamentary and European Union elections which were due to take place in June 2009, on the grounds that the ban on convicted prisoners voting contained in s 3 of the Representation of the People Act 1983 and s 8 of the European Parliamentary Elections Act 2002 was a violation of the claimant’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and under European Union law. The claim was, inter alia, for a declaration that both s 3 of the 1983 Act and s 8 of the 2002 Act were incompatible with the Convention, and was based on the ruling of the Grand Chamber of the European Court of Human Rights in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, that the blanket ban on convicted prisoners in custody voting in elections, imposed by s 3 of the 1983 Act, was a breach of Art 3 of Protocol 1 to the Convention and also based on the declaration of incompatibility by the Registration Appeal Court, Scotland in Smith v Scott [2007] SC 345 to the same effect. Following these cases the Government had set in process a period of consultation and had stated that it was about to set a timetable for the introduction of legislation into Parliament amending s 3 of the 1983 Act.

BURTON J said that, first, there was already in existence a declaration of incompatability in respect of s 3 of the 1983 Act by which the Government was bound (Smith v Scott) and upon which it was already taking action to lay legislation before parliament. It was not therefore appropriate for the court to exercise its discretion to make a further declaration of incompatability. This case could be distinguished from Bellinger v Bellinger [2003] 2 AC 467 where a further declaration of incompatability was made since in that case the government had not provided an assurance of Convention-compliant legislation, and from R (Greenfield) v Home Secretary [2005] 1 WLR 673 since the declarations made in that case provided an important vindication of the claimant’s rights. Second, since s 8 of the 2002 Act was parasitic on s 3 of the 1983 Act, there was no need for a declaration in respect of that section. Finally, the court would not exercise its discretion to grant a declaration concerning the incompatability of s 3 of the 1983 Act specifically relating to the enfranchisement of post-tariff lifers since the Grand Chamber in the Hirst case had ruled that the Government had a margin of appreciation in deciding how to replace the blanket ban on prisoners’ franchise and proposals had not yet been laid before Parliament. Furthermore, any declaration that resulted in pressure being put on the defendant to fast-track the legislative process was offensive to constitutional principles: R (Wheeler) v Officer of the Prime Minister [2008] EWHC 1409 (Admin). Finally, whilst it was unlawful for a public authority to act in any way which was incompatible with the Convention an “act” did not include a “failure to introduce in or lay before Parliament proposed legislation”: s 6(6) of the Human Rights Act 1998.

Appearances: Hugh Southey (instructed by Chivers Solicitors, Bingley) for the claimant; James Eadie QC and Jason Coppel (instructed by the Treasury Solicitor) for the Secretary of State; Philip Coppel QC (instructed by Liz Bashforth, Interim Director Legal and Democratic Services, Wakefield Metropolitan District Centre) for Wakefield Metropolitan Disrtict Centre.

Reported by: Jessica Giles, solicitor.