In the case of Tovey, the High Court today decided that the claimants, just a couple of the ‘rapidly expanding cohort of prisoners’ to seek compensation for being deprived of the vote in 2010, should not in fact receive any damages. Perhaps it is wise, before some of the anti-human rights brigade try and exploit the case to pursue their anti-Strasbourg-HumanRightsAct-Judgesofanykind agenda, to set out what the High Court actually did, and did not, decide.
The case is relatively straightforward. Even though it comes off the back of Hirst (the Strasbourg Court deciding that the current blanket ban violates prisoners’ human rights), the claim was based in English law: specifically, the Human Rights Act 1998. Using sections 6 and 7 of that Act, it was argued that by failing to respect their right to vote, the public authorities had acted unlawfully. On that ground they should pay compensation to the prisoners in question.
The problem with the claim, as Langstaff J in the High Court set out, was that English law is pretty categorical in refusing prisoners the vote. For example, section 3 of the Representation of the People Act 1983 states that,
(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence…is legally incapable of voting at any parliamentary or local government election.
Clearly, there is no way that this can be reconciled with the Hirst decision, since the Representation of the People Act 1983 does appear to impose a blanket ban on prisoners voting.
Therefore, section 3 of the Human Rights Act 1998 which requires judges to, ‘so far as it is possible to do so [read and give effect to] primary legislation and subordinate legislation in a way which is compatible with the Convention rights’ could not help the claimant. In the words of the judge, ‘[t]he court would have to interpret and apply the legislation as though “No” could mean “Yes”.’
This is important because the Secretary of State can only be found to have acted unlawfully in relation to the European Convention rights if he or she could have acted any differently. Unfortunately, the Representation of the People Act 1983 left the Secretary of State with no room to manoeuvre. In other words, the problem that the prisoners were complaining of was not the failure of the Secretary of the State, but a failure of the legislation.
With regards to this legislation, the European Court of Human Rights had already refused such compensation for those prisoners not able to vote in the 2010 election in Hirst and Greens and MT. This is because at the time, the Government was still considering its options and the European Court did not want to meddle. The Court had thought that a mere declaration of the violation of prisoners’ rights was enough.
Before anyone suggests that this is the end of prisoners seeking compensation for voting, it must be remembered that from the 23rd August 2011, six months after the Greens and MT decision, the UK will have run out of time to implement the decision and will from that day again be liable for compensation for future elections. David Pannick has mooted that compensation would be around £750 per prisoner. Given the 18 000 prisoners in the UK at the moment, the total liability could prove significant. David Cameron has cited the figure at £160 million. Having said that, as Carl Gardner has reported, the Government has supposedly sought to appeal the Greens and MT decision so that date may yet be pushed back.
Another interesting point to take from this case is the lengths the High Court went to emphasise its role under section 3 of the Human Rights Act 1998. Langstaff J declared that,
However great the imperative to adapt UK statutes to provide for fundamental rights basic to a democratic state (as determined by the European Court of Human Rights) to interpret the statute in this way would be a step too far – for it would, in Lord Bingham’s words, “change the substance of (the) provision completely, or would remove its pith and substance”.
It is important to emphasise this, especially in the face of the Policy Exchange report which blamed section 3 for judicial legislation.
Consequently, the case does not stand for the proposition that prisoners do not deserve the vote, or never deserve to get compensation. Thus, it does not make sense to use this case as ammunition against the European Court or the European Convention or that in some way we have stood up to European institutions. Unfortunately, although expectedly, the Daily Mail has today gone with the headline that, ‘High Court kicks out prisoners’ bid for vote compensation as Cameron told we CAN defy European judges‘.
What the case does stand for, is the proposition that prisoners probably will not be successful in getting compensation for not being allowed to vote in the 2010 general election. Crucially, this is due to the fact that the relevant public authority had not acted unlawfully, and not that there is some moral, ethical or human rights reason against compensation for prisoners.
“This is important because the Secretary of State can only be found to have acted unlawfully in relation to the European Convention rights if he or she could have acted any differently. Unfortunately, the Representation of the People Act 1983 left the Secretary of State with no room to manoeuvre. In other words, the problem that the prisoners were complaining of was not the failure of the Secretary of the State, but a failure of the legislation”.
In my view, the Secretary of State could have acted differently. For example, he could have made a remedial order under s.10 of the HRA 1998 amending s.3 of ROPA 1983 and laid it before Parliament. Therefore, the Secretary of State did act unlawfully under s.6(1) and the failure was down to him and not a failure of the legislation.
Is Section 3 RPA 1983 still good law under the HRA 1998? Is it not a clear case of declaration of incompatibility by courts?
A very good point: reading the case again, the judge may have ducked it. The prisoner sought damages and a declaration that his rights had been breached. The damages point was rejected. With regards to the declaration, Langstaff J said,
He then later said,
I think, basically, the judge wanted to wait for Parliament’s intervention. Given the nature of the claimants’ offences, it is not clear whether RPA would be incompatible with their specific rights because they may not be given the vote even under new compatible legislation. It appears Langstaff J did not want to decide on which prisoners should get the vote, and therefore whose rights were being violated, and those prisoners which should not.