SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Abel Campos Tel: 03 88 41 26 48

Date:

27 November/novembre 2012

DH-DD(2012)1106

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: Item reference: 1157 DH meeting (4-6 December 2012) Action plan (23/11/12)

Communication from the United Kingdom concerning the cases of Hirst No. 2 and Greens and M.T.against United Kingdom (Applications No. 74025/01 and 60041/08).

***********

Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres. Runion : Rfrence du point : 1157 runion DH (4-6 dcembre 2012) Plan d'action

Communication du Royaume-Uni relative aux affaires Hirst n 2 et Greens et M.T contre Royaume-Uni (requtes n 74025/01 et 60041/08) (anglais uniquement).

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

Execution of Judgments of the European Court of Human Rights Action Plan Hirst v UK No. 2 (application no. 74025/01; Grand Chamber judgment final on 06/10/2005) and Greens and M.T. v UK (application nos. 60041/08 and 60054/08; judgment final on 11/04/2011) Information submitted by the United Kingdom Government on 23/11/2012 Case Summary 1. Case descriptions: - Hirst v UK No. 2: The claimant claimed that section 3 of the Representation of the People Act 1983 which bars all convicted and sentenced prisoners from voting at parliamentary and local government elections and, indirectly, other types of election, was incompatible with the ECHR. The Court held that there had been a violation of Article 3 of Protocol No. 1 of the ECHR; it found the blanket ban to be disproportionate because it stripped a significant number of prisoners of the right to vote in an indiscriminate manner, applying automatically, irrespective of the length of sentence and the nature and gravity of the offence or the circumstances of the offender. However, given the differing practice across Member States, the Court confined itself to finding that the blanket ban was outside the margin of appreciation and recognised that it was for the UK legislature to decide on the means for securing the rights in Article 3 of Protocol 1. Greens and M.T. v UK: The Court found a violation of A3P1 and, in view of the delay in implementing Hirst and the number of claimants who had made similar applications against the UK, the Court adopted its pilot judgment procedure. It held that the UK must (a) bring forward, within six months of the date of the judgment became final, legislative proposals intended to amend the law on prisoner voting in a manner which is Convention-compliant; and (b) enact the required legislation within any such period as may be determined by the Committee of Ministers. Consideration of similar applications was suspended and the Court proposed to strike them out in the event of the UKs compliance with the judgment. In Scoppola v Italy (No.3) the Grand Chamber considered Italys prisoner voting regime. The UK submitted Observations and was granted an extension to the Greens and M.T. deadline until six months after the judgment in Scoppola became final. Scoppola was decided on 22 May 2012.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

Individual Measures 2. Just satisfaction: - The just satisfaction awards (costs and expenses) in both Hirst and Greens and M.T. have been paid; evidence previously supplied. 3. Individual measures: - The Government considers no further individual measures are required.

General Measures 4. General measures: On 22 November 2012, the UK Government published the Voting Eligibility (Prisoners) Draft Bill which contains legislative proposals to repeal and replace section 3 of the Representation of the People Act 1983 which provides for the current ban on prisoners voting. The Lord Chancellor and Secretary of State for Justice announced the publication of the Bill by means of an Oral Statement in the House of Commons (later repeated in the House of Lords by the Justice Minister). A copy of the Lord Chancellors Oral Statement is attached for reference. In his Statement, the Lord Chancellor acknowledged that the Government is obliged to implement the Court judgment. He announced that the Government would ask Parliament to appoint a Joint Committee (made up of members of the House of Commons and the House of Lords) to scrutinise the draft Bill, which sets out three different potential approaches for the Committee to consider as well as incorporating provision for the registration of enfranchised prisoners, in order to give effect to the right to vote. The Bill was published in a document which includes Explanatory Notes which describe the purpose and effect of the key clauses of the Bill and an accompanying narrative intended to place the Bill in its wider context and thereby aid Parliamentary scrutiny. This document can be accessed via the following link: http://www.justice.gov.uk/downloads/legislation/bills-acts/voting-eligibilityprisoners/voting-eligibility-prisoners-command-paper.pdf Pre-legislative scrutiny of draft Bills is a common and valuable feature of the legislative process in the UK. Its purpose is to improve the quality of legislation, particularly on complex and/or sensitive issues. The Government is committed to pre-legislative scrutiny whenever circumstances allow and has since May 2010 accordingly submitted several draft Bills covering constitutional matters to this process. Once Parliament resolves to establish the Joint Committee it will begin consideration of the Voting Eligibility (Prisoners) Draft Bill, taking such evidence as it deems necessary, and will make recommendations to Government in a public report on whether the Bill should be amended before introduction to Parliament and/or whether additional matters should be included within the Bill.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

When the Joint Committee has finished its scrutiny, the Government will reflect on its recommendations and will continue the legislative process as soon as possible thereafter.

5. Publication: - Both the relevant Court judgments are freely available online. 6. Dissemination: - Both the relevant Court judgments are freely available online. 7. State of execution of judgment: - In publishing the Voting Eligibility (Prisoners) Draft Bill the Government considers that it has complied with the requirements of the Greens and M.T. judgment to bring forward legislative proposals by 23 November. The Government will keep the Committee of Ministers fully updated as the legislative process continues, including as to the emerging timetable.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

Oral Statement to the House of Commons by the Lord Chancellor and Secretary of State for Justice

22 November 2012

ORAL STATEMENT: PRISONER VOTING

Mr Speaker, I wish to make a statement about the Governments approach to the judgments of

the European Court of Human Rights on prisoner voting.

This is a subject which provokes intense debate, not least in this House. As the House will know, from as early as the case of Hirst in 2004, the Court found the United Kingdoms bar on prisoners voting to be general, automatic and indiscriminate and concluded that it was, in the Courts view, in violation of Article 3, protocol 1 of the European Convention on Human Rights the right to free and fair elections.

The last Government committed to implement the judgment and issued two consultations which did not resolve the issue. Litigation has continued in the domestic and Strasbourg courts.

In the case of Greens and MT in 2010 the Strasbourg Court again found that the UK was in violation of Article 3, protocol 1 of the convention, and gave the UK 6 months to bring forward legislative proposals to remove the violation. This deadline was stayed pending the UKs intervention in a further case, Scoppola, involving the Italian Government. In this case, the Attorney General argued in person before the Court that national Parliaments discretion to determine policy on this issue should allow for a complete bar on prisoners voting.

The judgment in the Scoppola case was handed down in May of this year. It concludes the Strasbourg Courts consideration of the issue. In that judgment the Court made clear that in its view the margin of appreciation afforded to individual Council of Europe member states to decide on how far prisoners should be enfranchised was wide but confirmed its position that a complete bar was outside that margin.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

The judgment restarted the clock on Greens and MT and requires the Government to bring forward legislative proposals to give effect to the judgment by tomorrow, 23 November; and to enact the required legislation.

Mr Speaker, the Prime Minister has made clear, on the record, his personal views on this subject. I have done the same - and those views have not changed. However, the Government is under an international law obligation to implement the Court judgment. As Lord Chancellor, as well as Secretary of State for Justice, I take the obligation on me to uphold the rule of law seriously.

Equally, it remains the case that Parliament is sovereign, and the Human Rights Act explicitly recognises that fact. The current law passed by Parliament remains in force unless and until Parliament decide to change it.

As Lord Justice Hoffman put it in a case in 1999:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.

Last month, the Attorney General made clear in evidence to the Justice Committee that it is entirely a matter for Government to make proposals but ultimately for Parliament to determine what it wants to do. Parliament is sovereign in this area; nobody can impose a solution on Parliament, but the accepted practice is that the United Kingdom observes its international obligations.

Mr Speaker, the judgment requires the Government to bring forward legislative proposals for Parliament to consider. It will then be for Parliament to scrutinise and to decide on those.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

So I have today laid before Parliament a draft Bill for pre-legislative scrutiny, and the Leaders of both Houses are writing to the Liaison Committees proposing that a Joint Committee of both Houses be appointed to conduct that pre-legislative scrutiny. We judge that pre-legislative scrutiny of this nature is appropriate given the significance of this issue and the strong views on both sides that exist right across this House.

The draft Bill sets out three different potential approaches for the Committee to consider. Presenting a draft Bill with that range of options reflects the spectrum of views that we know exist on this question. However, it will of course be for the Committee once established to consider whether approaches beyond those canvassed in the draft Bill should also be considered by Parliament in due course.

The first approach in the draft Bill is for prisoners sentenced to less than four years to be entitled to vote. A four year bar has previously been discussed by Parliament. The second approach would limit the vote to prisoners sentenced to six months or less. The final approach would effectively restate the current position that anyone incarcerated following conviction would not have the vote.

The Committee will want to consider these approaches, their consequences if they were in due course adopted by Parliament, and whether there are other options for example the Italian system, found to be compliant by the Court, disenfranchises prisoners post-release. The Committee will I am sure consider evidence on this and other approaches.

It may also want to reflect on the consequences for the rule of law and the UKs international standing of Parliaments ultimate decision.

The Committee might also wish to think about practical implementation. The administrative consequences and costs for the prison service, the courts and electoral registration system and Electoral Registration Officers of different approaches could be significant.

DH-DD(2012)1106 : distributed at the request of United Kingdom/Royaume-Uni. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribus la demande dun/e Reprsentant/e le sont sous la seule responsabilit dudit/de ladite Reprsentant/e, sans prjuger de la position juridique ou politique du Comit des Ministres.

The House will want to note that this draft Bill does not yet deal with territorial extent. Any Bill introduced into Parliament would need to extend to the whole of the United Kingdom, although the Bill is currently drafted for England and Wales only. The Government will engage with the Devolved Administrations during the Pre-Legislative Scrutiny process to ensure the legislation applies correctly in Scotland and Northern Ireland, in recognition of the interaction with devolved policy matters.

When the Joint Committee has finished its scrutiny, the Government will reflect on its recommendations. We will continue the legislative process by introducing a Bill for full debate and scrutiny as soon as possible thereafter.

Mr Speaker, I have set out in some detail for the House the background to the draft legislation that I am publishing today, and the respective roles of Government and Parliament in resolving this issue. I commend this statement to the House.