England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28th October 2009

1. MR JUSTICE BURTON: The Claimant was sentenced to life imprisonment on 1st March 1978 for the rape and murder of his niece in 1977. The minimum term (tariff) has now expired, and he would be eligible for release but for a finding or findings by the Parole Board that he is too dangerous to release into the community. So he remains in custody as what is called a "post-tariff lifer". He is detained at HMP Wakefield, and in April 2005 he was informed by the Electoral Services Officer at Wakefield Metropolitan District Council (now the Second Defendant) that he could not be registered to vote for any UK elections, because, by virtue of s3 of the Representation of the People Act 1983 (as amended) ("the 1983 Act"), all prisoners who are in custody (save those who are on remand, and certain others not material for this purpose) are disenfranchised from voting in any UK election. Although he wished to challenge such position by judicial review at that stage, he was unable to obtain funding. He now does apply for judicial review, by application issued in December 2008, by reference to an asserted entitlement to vote in what were then the forthcoming European elections (although they have now taken place in June 2009), for which he has obtained permission from the single judge, in the light of developments since 2005, by reference to the decision of the European Court of Human Rights (Grand Chamber) in Hirst v UK (No 2) of 6 October 2005 [2006] 42 EHRR 41, which I shall describe.
2. The relevant statutory provisions, which provide for the disenfranchisement of which the Claimant complains, are, first, s3 of the 1983 Act, which governs the Parliamentary and Local Government franchise:

(i) "(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence [or unlawfully at large when he would otherwise be so detained] is legally incapable of voting at any parliamentary or local government election."

3. Secondly, in relation to European elections, the citizens entitled to vote are defined in s8 of the European Parliamentary Elections Act 2002 ("the 2002 Act"):

(i) "(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).

(ii) (2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region,. . . "

4. Then there are provisions in relation to his address and his registration.
5. The 2002 Act was enacted pursuant to the United Kingdom's obligations under Article 190(1) of the Treaty establishing the European Community, which provides:

(i) "The representatives in the European Parliament of the Peoples of the States brought together in the Community shall be elected by direct universal suffrage"

and the European Act concerning the election of the representatives to the European Parliament by direct universal suffrage, originally annexed to Council Decision 76/787 and now, as amended, incorporated into Council Decision 2002/772 ("the 1976 Act").

6. Recital 1 of this Decision provides that the amendment of the 1976 Act is to "enable members to be elected by direct universal suffrage in accordance with principles common to all Member States while leaving Member States free to apply their national provisions in respect of aspects not governed by this decision". Article 7 introduced a replacement Article 7 to the 1976 Act, which reads:

(i) "Subject to the provisions of this Act, the electoral procedures shall be governed in each Member State by its national provisions. These national provisions, which may, if appropriate, take account of the specific situation in the Member State, shall not affect the essential proportional nature of the voting system."

7. The position is that, with certain exemptions, such as peers of the realm who are specifically enfranchised for European elections by the 2002 Act, the franchise is thus the same in European elections as it is for UK elections, as s8 expressly provides.
8. In Hirst, the Grand Chamber decided, upon the application of Mr Hirst, who was, like the Claimant, also a pre-tariff lifer, that the blanket ban on convicted prisoners in custody from voting in elections imposed by s3 of the 1983 Act was a breach of Article 3 of Protocol 1 of the European Convention of Human Rights ("ECHR"). The Grand Chamber however concluded that "the rights bestowed by Article 3 of Protocol 1 are not absolute. There is room for implied limitations and Contracting States must be given a margin of appreciation in this sphere" (paragraph 60 of the judgment). The Court continued:

(i) "61. There has been much discussion of the width of this margin in the present case. The Court would reaffirm that the margin in this area is wide."

9. As to the position of prisoners the Court's judgment included the following passages:

(i) "70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.

(ii) 71 . . . The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned . . .

83. Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the Act of 2000, which for the first time granted the vote to persons detained on remand, s3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No.1.

84. Turning to the Government's comments concerning the lack of guidance from the Chamber as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention, the Court notes that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the state concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention . . .

85. In a case such as the present, where Contracting States have adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No.1 . . . "

10. The Government took steps in consequence of that judgment. With a view to giving detailed consideration to the issue of how prisoners' voting rights ought to be regulated, so that Parliament could reconsider the blanket ban and decide what lesser restrictions should be substituted, the Secretary of State for Constitutional Affairs published, in December 2006, a first-stage consultation paper headed "Voting Rights of Convicted Prisoners Detained within the United Kingdom". The consultation period was to, and did, close on 7th March 2007. The Government collated the responses, and officials gave detailed further consideration to the approach to be adopted to prisoners' enfranchisement, and to the practical implications of implementing any such approach, and a second stage consultation paper was published by the Ministry of Justice, as the Department had now become, on 8th April 2009, summarising the responses to the first stage consultation paper, and seeking further views with regard to the basic approach to be adopted and the practical issues. This second consultation has only just closed, namely on 29th September 2009. In the detailed Grounds of Resistance by the Secretary of State for Justice (the First Defendant), it is stated that, following the closure of the second consultation period, the Government would set a timetable for the introduction of legislation into Parliament amending s3 of the 1983 Act. That is, I am informed, by Mr James Eadie QC, who, with Mr Jason Coppel of Counsel, appears for the First Defendant, still the Government's intention.
11. Meanwhile there have been two other cases brought before the UK courts, one in Northern Ireland and one in Scotland, by prisoners, raising the same or similar issues. The first was the Scottish case, Smith v Scott in the Sheriff Court of Alloa, before a Registration Appeal court, comprising three judges of the Court of Sessions [2007] SC 345. Mr Smith was a convicted prisoner (his precise status is not clear to me) who wished to be registered to vote in the elections for the Scottish Parliament. In the light of Hirst, it was clear, and the Advocate General for Scotland did not deny, that s3(1) of the 1983 Act was incompatible with the ECHR. The Claimant unsuccessfully sought to persuade the court that they should "read down" s3 (as discussed in Ghaidan v Gogin-Mendoza [2004] 2 AC 557: for reasons to which I will refer later, the judges (at paragraphs 21 to 28 of their judgment) plainly concluded that 'reading down', ie, interpreting and construing the statutory provisions so as to comply with the ECHR, was not feasible. However the court made a Declaration of Incompatibility.
12. In the other decision, before the High Court of Justice in Northern Ireland (Toner and Walsh [2007] NIQB 18) two convicted prisoners (again their status is unclear to me) sought, in the light of Hirst, inter alia a declaration that the disqualification on convicted prisoners voting does not apply to elections to the Northern Ireland Assembly. After carefully considering the judgment of the Grand Chamber in Hirst (and the decision in Scott v Smith), Gillen J held, at paragraph 9(iv) of his judgment, as follows, in relation to what he concluded to be the consequence of the judgment of the European Court of Human Rights:

(i) "I consider that the court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court . . . Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney entitled to say at paragraph 41 of his first affidavit that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate."

13. Since the Government is proposing to put primary legislation before Parliament, it is thus neither necessary nor sensible for them to consider the alternative route of remedial action pursuant to s10 of the Human Rights Act 1998 "the HRA"), in the light of the Declaration of Incompatibility.
14. It is in these circumstances that the Claimant has brought these proceedings. Prior to doing so, he sought clarification, which he did not get, that, in the light of Hirst, prisoners, and in particular post-tariff lifers in his position, would be enfranchised. Indeed, it is clear that such is not part of the Government's thinking. Reference was made by Gillen J, in the passage from his judgment which I have cited above, to the fact that the Government was, in the light of its proposals in the first stage consultation paper, "unlikely to propose that prisoners serving sentences as long as those of the Applicants should become entitled to vote whilst detained". So far as post-tariff lifers are concerned, they are indeed not proposed to be enfranchised, according to the Government's proposals in either the first or second stage consultation papers. Various options are put forward for consultation, ranging from a proposal to remove a disqualification from all those serving a term of 1 year or less, to similar proposals limited to those serving less than respectively 2 years and 4 years. The same Mr Sweeney, Head of the Elections and Democracy Division in the Ministry of Justice, who deposed in Toner, has put in a witness statement in these proceedings, which describes the content of the two consultation papers, which are annexed to his statement. He records that the Government is firmly opposed to the enfranchisement of prisoners sentenced to 4 years imprisonment or more, and also to the enfranchisement of post-tariff prisoners like the Claimant.
15. The first stage consultation paper simply stated, in paragraphs 66-67 as follows:

(i) "66. Part of the argument against the UK's blanket ban on prisoners voting, was that this included post-tariff prisoners (ie, prisoners kept beyond the original length of their sentence, for whatever reason). Mr Hirst was, when he first brought his case forward, a tariff-expired prisoner himself. It was argued that since the punishment element of his sentence had expired, meaning he was effectively detained on grounds of risk, there could no longer be any punishment-based justification for continuing to ban him from voting.

However, this case raises for consideration the position of persons who may have committed very serious offences, and who have been detained beyond their original sentence, due to their continued threat to the public. The Government considers that enfranchising such prisoners is undesirable, and does not intend to pursue this option.

16. The second stage consultation paper, which contained and reflected the views of respondents to the first stage consultation, included (inter alia) the following statements of position by the Ministry of Justice:

(i) "The Government will not consider proposals to enfranchise prisoners who are sentenced to 4 years' imprisonment or more. The Government has also concluded that it does not wish to extend voting rights to those prisoners serving life or other indeterminate sentences, including cases where they are 'post-tariff' prisoners (who will have served the minimum term imposed by the judge but remain in custody as the Parole Board has not considered them safe to be released). That is on the basis that the judgment of the ECHR does not, in the Government's view, require the enfranchisement of such individuals, and the Government continues to believe that the seriousness of the original offence in such cases and the continued danger that such individuals pose to the public is such that it would not be appropriate to extend the franchise to individuals from whom, in the view of the Parole Board, society still needs to be protected. In addition, the Government considers that it would be right to disenfranchise those convicted following prosecution for electoral offences irrespective of their length of sentence: the Government agrees with the argument that such a punishment is proportionate to the offence of abusing the democratic process, and the Government notes the higher level of support for this by respondents when compared to the general question of all prisoners' voting rights . . .

(ii) In line with its view that the more serious the offence that has been committed, the less right an individual should have to retain the right to vote when sentenced to a period of imprisonment, the Government does not intend to permit the enfranchisement of prisoners who are sentenced to 4 years' imprisonment or more in any circumstances.

(iii) The Government believes that this is compatible with the ECHR ruling in Hirst (No 2).

(iv) The position of post-tariff and Indeterminate Public Protection (IPP) prisoners

(v) Some prisoners are sentenced to life imprisonment or other forms of indeterminate sentence. In such cases, the sentencing judge will decide on a minimum term, or tariff, that prisoners must serve for the purposes of punishment. Once this has been served, prisoners will be technically eligible for release. However, they will only be released if the Parole Board considers that it is safe for that to happen. If the Parole Board considers that the prisoners still represent a real risk of serious harm to the public, then it will keep them in prison. The most dangerous prisoners may never be released.

(vi) The Government believes that it would not be acceptable to differentiate between the 'tariff' and 'post-tariff' (ie, punitive and preventative) part of the sentence, and does not propose to extend voting rights to post tariff-prisoners. That is on the basis that the judgment does not, in the Government's view, require the enfranchisement of such individuals, and the Government's continues to believe that the seriousness of the original offence in such cases, and the continued danger that such individuals pose to the public, is such that it would not be appropriate to extend the franchise to those individuals while they remain in prison."

17. The Claimant's position is most shortly stated at paragraph 3.29.2 of the skeleton, served on his behalf by Mr Hugh Southey of Counsel:

(i) "In this case the only conduct that could be said to justify the Claimant's disqualification from voting is the murder that resulted in him being imprisoned. Firstly, it should be noted that the offence is not one related to the abuse of voting or some other offence that has undermined democracy. In addition, the Claimant has served his minimum term. As a consequence, he could now be released if he were able to demonstrate that his risk was sufficiently low (Stafford). If he were to be released, he would be able to vote. However, he remains unable to vote because he is detained to protect the public. That suggests that preventing the Claimant from voting is not an essential part of his punishment . . . "

18. The Claimant sent a Pre-Action Protocol letter, not only to the First Defendant, but also to the Second Defendant, which is involved simply as being responsible for registering voters in the district where the Wakefield Prison is situated. By letter dated 8th December 2008, the Second Defendant specifically questioned why the Claimant proposed to include the Council as a party to the proposed judicial review application:

(i) " . . . given that the Council, as a matter of law, is simply unable to carry out the requested actions. The only competent party is the Ministry of Justice . . . nor do I consider that the Council ought to be listed as an interested party simply because your Client is currently in Wakefield Prison. If the legislation is going to be changed (in the way that other jurisdictions have changed their legislation) it is likely that prisoners would be required to register with the electoral authority in whose area the prisoner had his last known place of abode. In your Client's case this would be Blackpool. Your inclusion of the Council in these proceedings will not further your Client's cause, and will merely cause the Council to have to expend unnecessary amounts in legal costs."

19. Nevertheless, the Claimant, who has the benefit of Legal Aid, has pursued both Defendants. Mr Philip Coppel QC who has appeared for the Second Defendant in these proceedings, has taken the additional point that, in any event, there is an alternative remedy to the bringing of judicial review proceedings, by way of an appeal to the County Court against the refusal of registration, pursuant to s56 of the 1983 Act.
20. Mr Southey has sought, and obtained, without objection from the Defendants, leave to amend his original claim so as to provide a menu of alternative remedies, with which I shall deal in this judgment:

(i) A Declaration of Incompatibility of s3 of the 1983 Act with the ECHR. This has already been granted in Smith v Scott, a UK court. However by way of an additional answer to the Defendants' response that any such declaration was unnecessary and academic, Mr Southey developed, in the course of argument, and put forward, a further basis for such declaration (in supplement to his claim for a substantive declaration, to which I refer below). This basis is that, in the court's discretion, a Declaration of Incompatibility with the ECHR should now be made, not simply upon the ground that s3 of the 1983 Act is incompatible with the decision of the Grand Chamber in Hirst, but that it is specifically incompatible with the ECHR in relation to the position of post-tariff lifers, and, as a matter of discretion, because the Government's proposals for fresh legislation do not make any provision to change that position.

(ii) The 'reading down' of s8 of the 2002 Act, and enforcement of s8 as so reinterpreted, in one of two alternative ways. This too was refined and developed in the course of his submissions. In answer to my express desire that if, effectively, I was to act as quasi-legislator (pursuant to the principles enunciated by the European Court in Marleasing v Commercial Internacional de Alimentacion SA [1990] ECR 1-4135, as exemplified, for example, in Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 and Coleman v Attridge Law [2008] ICR 1128) then I would need to see the proposed form of the amended/adjusted provision, he offered me two alternatives - I emphasise the additional wording.

21. First "a person is within this subsection if on the day of the poll he would be entitled, or would be entitled but for his status as a prisoner, to vote as an elector at a parliamentary election . . . " [this would thus permit all prisoners to vote in European elections (but not in other UK elections)].
22. Or, second, "the person is within this subsection if on the day of the poll he would be entitled, or would be entitled but for his status as a prisoner who is serving a life sentence, but has completed the minimum term of that sentence, to vote as an elector at a Parliamentary election" [this would obviously as an alternative be limited to allowing post-tariff lifers such as the Claimant to vote in European, but not UK, elections.]

82. In the alternative, a declaration that s8 is incompatible with the ECHR and/or with Article 190(1) and the 1976 Act, as interpreted in accordance with the ECHR.

83. (And this too emerged in the course of his submissions before me) a declaration that any legislation to be enacted by the United Kingdom in replacement for s3 of the 1983 Act would not comply with the ECHR unless it provided for the enfranchisement of post-tariff lifers.

23. Mr Southey accepted that the simple declaration sought in his Claim Form (which itself would need amending because of the fact that the relevant European elections have now taken place) namely "a declaration that the Claimant is entitled to vote in [forthcoming] European Union elections" could only arise if one or more of the remedies above are granted, and thus consequentially upon them.

Reading Down

24. The Claimant only seeks to read down s8 of the 2002 Act, and not s3 of the 1983 Act. Mr Southey says that he accepts that he could not mount an argument that reading down of s3 would be feasible within the parameters of s3(1) of the HRA. The problems and limitations in such an exercise have been considered in Re S [2002] 2 AC 291 and in Ghaidan (supra), to which I will return below, but the Scottish Court in Smith v Scott rejected such approach in relation to this very section, and the argument is not renewed.
25. The remedy which the Claimant seeks is to read down s8 of the 2002 Act, in one of the two alternative ways previously referred to. This is the primary remedy he seeks in relation to his case that s8 is incompatible with the ECHR and/or with EU law. As already explained, the Claimant does not seek to read down s3 of the 1983 Act. He ascribes this in part to what he submits to be a relevant distinction from his point of view between the two sections, namely that there is no express exclusion of prisoners in s8, such as there is in s3; but I do not conclude that to be a material difference, for reading down in an appropriate case might include the reading out or setting aside of such an express exclusion. The fact remains that reading down s3 was, for reasons which did not allude to the presence of the express exclusion, declined by the Court in Smith v Scott. Those reasons appear in paragraphs 26 and 27 of its judgment, and can be summarised as follows:

(i) There was in s3 clear provision for a blanket ban on voting, applying to all convicted prisoners, and there was thus no "grain of the legislation" (a reference to Lord Nicholls' speech in Ghaidan at paragraph 33) which could "properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights".

(ii) It was necessary to "recognise the complexity of the issues which had been opened up by the decision . . . in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward".

(iii) The Convention rights conferred by Article 3 of the First Protocol were in no way absolute, so that "there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of the Court's function to make an uninformed choice among such alternatives": the Court was being asked to "choose among multiple policy alternatives", rather than actually performing an exercise of interpretation.

(iv) The Court concluded that it would, by reference to Lord Nicholls' speech in Re S at paragraph 40, be "departing substantially from a fundamental feature of the legislation", but in any event would be "without the benefit of consultation or advice, . . . in a real sense . . . legislating on its own account".

26. Mr Southey suggests that I would not here be departing from any fundamental feature of s8 if I were to introduce, by way of inclusion into the franchise, one or other categories of prisoners, such as is suggested in his two alternatives. But it seems to me that Mr Eadie QC is right to submit that there would indeed be a fundamental feature of the 2002 legislation from which I would be departing, namely the fundamental parity or equivalence between the franchise in UK elections and that which is provided for in the 2002 Act. It is true that there is, at the moment, one express difference, legislated by Parliament, so as to allow peers of the realm to vote, who cannot vote in UK elections because, at any rate when the 1983 Act was passed, all peers were themselves eligible for the Upper House and should not therefore have been put in the position of being a member of the Upper House while voting for members of the Lower: but Mr Southey's would be a further, and substantial, departure, from such parity and equivalence. However, as I have recorded, this is only one of the bases upon which the Court in Smith v Scott found itself driven to conclude that reading down s3 was inappropriate.
27. There are ostensibly two jurisdictions which I would be exercising in reading down or reinterpreting s8. The first is the express jurisdiction granted by s3(1) of the HRA, which provides that "so far as it is possible to do so, primary legislation . . . must be read and given effect in a way which is compatible with the Convention rights", a duty which is described by Lord Nicholls in Re S at paragraph 37 as "a powerful tool whose use is obligatory: it is not an optional canon of construction". Then, so far as EU law is concerned (and for the purpose of considering this remedy, I assume in the Claimant's favour the disputed contention that s8 is in contravention of EU law) by virtue of the Marleasing principle, a United Kingdom court must, as was stated by Lord Keith in Webb v EMO Air Cargo (UK) Ltd [1993] 1 WLR 49 at 59F "construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of domestic legislation". That duty too is mandatory, and there is, as Mr Southey pointed out, a duty to give a robust interpretation to the UK legislation adjudged to offend.
28. However, assuming that I have not only the power and duty under the HRA but also that there is a contravention of EU law, so that I must and can also exercise the same jurisdiction by reference to Marleasing, I am entirely clear that this is not an appropriate case. With the caveat that the feature of equivalence between the two franchises, the obvious distinguishing feature of the 2002 legislation, has already been breached by the inclusion of peers, rendering it more arguable that such feature could here be further departed from, all of the reasoning of the Scottish Court in Smith v Scott applies in this case with equal force.
29. It is true to say that the consultation process referred to in Smith v Scott has now thrown up at least this one point of clarity, namely that it is not at any rate the Government's intention so to legislate as to extend the franchise to post-tariff lifers, and I shall refer to this factor later. But it is still the case that I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature, but are imminently to be considered by the Legislature. Two competing alternatives are presented to me for consideration. One of these affects the franchise by allowing all convicted prisoners to vote. The other amends the statute so as to allow one particular category of convicted prisoners, the post-tariff lifers, to vote, while still retaining a bar on all other prisoners, including those only serving very short terms of imprisonment, to whom it seems, on any basis, the Government is proposing that the franchise should be extended; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended.
30. The first proposal is not acceptable, not least for the same reasons as were enunciated by Gillen J in paragraph 9(iv) of his judgment, which I have cited earlier. Enfranchisement of all prisoners, including those with a minimum term/tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider, but it would be a dramatic change,was not, as Gillen J points out, required by Hirst. As for the alternative, selection of one particular category of prisoner simply because one of that category happens to be the Claimant, to effect what would in fact be a substantial amendment of the legislation, but only as to one category of convicted prisoner, cannot be an appropriate exercise of this jurisdiction. It would lead to piecemeal and possibly continuous amendments, without consideration by Parliament, of legislation dealing with matters of important social policy, all depending upon which claimant happened to be before the Court at any one time.
31. I reject Mr Southey's invitation to amend the legislation by adding either of his suggested alternative provisions to it. If and insofar as s8 of the 2002 Act is incompatible with the ECHR or with EU law, to which I shall turn, reading down is not an available remedy.

Declarations of Incompatibility

32. I turn then to the next remedy sought by the Claimant, which is a declaration that s3 of the 1983 Act is incompatible with the ECHR. The argument between the parties here did not relate to whether s3 accords with the ECHR, because it has already been decided by the Grand Chamber in Hirst that the present blanket ban on prisoners voting, which is provided for by s3, is indeed in contravention of the ECHR. The first Defendant's case is that it is inappropriate and otiose to make such a declaration, because (i) one has already been made by a UK court, namely in Smith v Scott, (ii) the Government has accepted such incompatibility and is in the process of putting forward, after detailed and lengthy consultations, legislation to Parliament.
33. The making of such a declaration is, it is accepted, discretionary. Mr Southey accepts both that a declaration has already been made and that the Government is taking steps to bring in fresh legislation, albeit, as he submits, too slowly and, by virtue of its overt rejection of his client's position in the course of the consultation, unsatisfactorily to him. But he asserts that, nonetheless, a declaration should once again be made by another UK court. He does not seek to differentiate between the fact that one court is in Scotland and one would now be in England and Wales, no doubt because he recognises that the Government is as much put on notice (and the provisions of s10 of the HRA would, if appropriate, be as much triggered) by a Scottish as by an English/Welsh decision. He submits that there would be some gain to his client by a yet further declaration:

(i) He refers to Bellinger v Bellinger [2003] 2 AC 67 and in particular to the speech of Lord Hobhouse at paragraph 79, in which he recorded the Government's arguments that, in view of its concession that an earlier decision of the European Court of Human Rights bound the United Kingdom, "any declaration would be academic and its purpose was merely to confer a power to expedite legislation under s10". However Lord Hobhouse recorded that "the Government cannot yet give any assurance about the introduction of compliant legislation".

(ii) Mr Southey further referred to the case of R (Greenfield) v Home Secretary [2005] 1 WLR 673 HL, where, at paragraph 19, Lord Bingham made various declarations, where "even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding would be an important part of his remedy and an important vindication of the right he has asserted": ie, even where material compensation could not be awarded, the claimant in that case could gain his satisfaction after a contested case by the grant of a declaration.

34. The facts in this case are however quite different. The Claimant brought his claim in December 2008, nearly two years after a declaration of incompatibility was made by the Court in Smith v Scott, so that (i) there was not simply a concession made as in Bellinger, but the making of an order, by which the First Defendant is naturally bound and with which he was and is taking steps to comply, (ii) no further 'vindication' is required: the Claimant was not setting out to get vindication, but to obtain practical relief. Insofar as some pressure might have been intended to be brought to bear on the First Defendant, by the bringing of the action, to act speedily in bringing forward legislation to Parliament, that would be, as appeared to be common ground (but I shall discuss the matter further later) offensive to constitutional principles (by reference inter alia to the decision of the Divisional Court in R (Wheeler) v Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 1409 (Admin)), but I am content to say that there is no need for any declaration to be made by yet another court, as one has already been made which is binding on the UK Government.
35. However, towards the end of his submissions, Mr Southey put forward another basis upon which to support his case for such a declaration. He submitted that, as the grant of a declaration is discretionary, there is no reason why it cannot be made again, if it is made on different grounds. He submits that I can and should make a declaration that s3 of the 1983 Act is incompatible with the ECHR, and do so by reference to the fact that it excludes (together with all other convicted prisoners) post-tariff lifers. Then there would be some point in making the declaration, given that the Government's proposed legislation seems, subject to what may have emerged from the second consultation, to be intended not to make any change in their position. Hence, it would be a declaration as to the incompatibility with regard to the present legislation, but to be made because it does not appear as if there is going to be any amelioration of his client's position by reference to the proposed legislation. This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions, to which I shall come in a moment. Subject however to that argument, with which I shall deal at a later stage, I reject his suggestion that I should make a declaration of incompatibility.
36. Mr Southey pursues an additional argument that, even if I were not prepared to make a declaration of incompatibility of s3 of the 1983 Act with the ECHR, I should make a declaration in relation to s8 of the 2002 Act as to its incompatibility with the ECHR and with EU law. This, he submits, would at least have the merit of not being a duplicative declaration, given that the declaration which was made in Smith v Scott only related to s3, since it concerned the desire of the claimant in that case to vote in the Scottish Parliament elections.
37. Just as I have in relation to matters with which I have dealt so far, so too for this purpose:

(i) I make the assumption in favour of the Claimant that s8 is in contravention of EU law.

(ii) I do not deal at this stage with Mr Southey's case that a declaration of incompatibility could and should be a peg upon which to hang his substantive arguments about proposed legislation ('the proposed legislation argument').

38. Accordingly, I address the simple question as to whether it is appropriate to make a declaration in favour of the Claimant as to incompatibility with the ECHR and (on the assumed basis) with EU law.
39. Insofar as the Claimant seeks a declaration that s8 is incompatible with EU law, such relief is contested by the First Defendant, who takes three preliminary points:

(i) As I have explained, the Claimant asserts that s8 is in contravention of the requirements of Article 190(1) for election by direct universal suffrage and/or of the 1976 Act. Mr Eadie submits that Article 190(1) is not directly effective. Mr Southey does not accept that. He points to a decision of the European Court, in fact one relied upon by Mr Eadie, Eman & Sevinger v College van Burgemeister Weuthers van den Haag [2007] 1 CMLR 4, a case in which the right of Dutch nationals resident in Aruba, a Dutch overseas territory, to vote and to stand as a candidate in European elections in the Netherlands was in issue. Mr Southey points out that no point seems to have been raised in that case as to the question of direct effect, and that it would and, on Mr Eadie's case, should, have been, if there were any issue about it, which he submits there is not.

(ii) Mr Eadie's next threshold point is that the question of the treatment of convicted prisoners is a matter of criminal and penal policy, which, as a matter of precedent, if not jurisdiction, is not part of the European Court's remit. He refers to Casati [1982] 1 CMLR 365, where the European Court stated (at paragraph 27) "in principle, criminal legislation and the rules of criminal procedures are matters for which the member states are still responsible", the limits on that, addressed in Casati, being on the power of the member states to introduce measures of control relating to the movement of goods or persons between member states. In Commission of the EC v Council of the EU [2005] ECR 1-7879, the Court was dealing with environmental offences, but at paragraph 47 expressly confirmed that "as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence". Further in Kremsow v Austria [1997] 3 CMLR 1289 (especially at paragraphs 16-17) the European Court stepped back from dealing with issues relating to the sentencing of Mr Kremsow for murder and for illegal possession of a firearm under provisions of national law which were not designed to secure compliance with rules of Community law.

(iii) Further, and more broadly, Mr Eadie relied upon two decisions of the European Court, Eman (supra) and Spain v UK [2007] 1 CMLR 3, the latter dealing with Spain's challenge to Gibraltarians voting in UK elections, in both of which cases the European court was invited to deal with issues so far as the franchise was concerned. It seems that the two cases were dealt with together, on 12th September 2006, and by the same Court. In Eman, the Court stated, at paragraph 50, in relation to elections, that "it is for the member states to adopt the rules which are best adapted to their constitutional structure" and, at paragraph 78 of Spain, that "the definition of the persons entitled to vote and to stand as a candidate to the European Parliament falls within the competence of each member state in compliance with Community law". This accords with the amended Article 7 of the 1976 Act, cited earlier.

40. Mr Southey however points out that, in relation to both a criminal/penal policy question (Kremsow) (see, eg, paragraph 6), and an election case (Eman at paragraph 54), in each case the question as to whether there is, on the particular facts, a breach of the ECHR was plainly of significance to the result.
41. I am prepared, not least because Mr Eadie indicated that he was only, as he put it, sketching his case lightly in this regard so as to preserve it, to accept, for the purposes of my decision, that, if there is a contravention of the ECHR, then what might otherwise be the practice or duty of the European Court to stand back would not apply; and that a policy of disapplying the franchise to convicted prisoners, if in breach of the ECHR, would be a contravention also of EU law by a Member State in operating the principles of universal suffrage applied to it, and capable of action directly at the hands of a complainant.
42. However, as can be seen, the only basis upon which s8 would then be non-compliant with EU law would be by virtue of non-compliance with the ECHR. I do not conclude therefore that EU law adds anything to the question as to whether I should grant a declaration that s8 is not compatible with the ECHR.
43. I am satisfied that, but for Mr Southey's 'proposed legislation argument', this course is wholly inappropriate as a matter of discretion:

(i) Simply as a matter of context and background, there is no presently intended European election, to which alone s8 would apply (although I was told of the possibility of a by-election in at any rate some part of the country in the event that the Lisbon Treaty is ratified and leads to one additional MEP being allocated to the UK). These proceedings were brought at the time when the June 2009 European elections were still in the future. There will now not be further such elections for 5 years. By that time, whatever the Claimant's personal position may be, new legislation, whatever it may be, will be well in place (and will have been capable of challenge, if appropriate).

(ii) More significantly, it is plain that the challenge to s8 is purely parasitic to the real challenge, which is to s3. S8 merely provides that (with the exceptions discussed) the same people can vote in European elections as can vote in UK elections. When there is new legislation in place of s3, s8 will automatically follow. A declaration has already been made in relation to s3, upon which s8 wholly hangs, and legislation is to be put before Parliament with the intention of curing the contravention of the ECHR.

44. For the reasons I have given, namely that there is already a declaration of such incompatibility in relation to the governing section, s3, upon which s8 entirely depends, the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to s8, any more than there is to s3, unless it is by reference to Mr Southey's 'proposed legislation argument', to which I now turn.

Proposed Legislation

45. Over and above any exercise, which I have now found to be academic, of simply achieving that which has already been achieved, namely a conclusion, by which the Government is bound, that the present system enshrined in ss3 and 8 is incompatible with the ECHR, the substance of Mr Southey's case was, on the face of it, contained in a straightforward declaration in his Claim Form, to which I have referred above, as to the Claimant's entitlement to vote in the then forthcoming European elections. Plainly that is simply not available as a substantive remedy in the light of the present legislation, which remains in force unless and until replaced by a new enactment. The way that he sought to put his case by the end of his submissions was in part on the basis, already discussed, of a 'declaration of incompatibility' personalised to the facts of this case, and in part by a declaration formulated in the course of argument, that 'any new legislation would not comply with the ECHR unless it provides (at least) for enfranchisement of post-tariff lifers'.
46. Whether it is hung on the peg of an attack on the existing legislation or whether it amounts to a pre-emptive strike against future legislation, Mr Southey's case only arises in the circumstances in which the Government has said, in the course of its own consultation procedure, that it would not support or introduce any legislation which would give the franchise to post-tariff lifers.
47. That is of course the reality of what drives this litigation. It seems to me clear that, if the First Defendant had, in its response to the Pre-Action Protocol letter, indicated that it was intended to bring forward legislation which would give the vote to post-tariff lifers, the Claimant would not have proceeded with his action. But to say that is the motive for the litigation does not give him a good cause of action. It is plain from the consultation documents that the shape and content of the proposed legislation is as yet wholly undecided. What we know is that the Government says it is not proposing to include in such proposals any enfranchisement of post-tariff lifers; and it would seem unlikely that the responses to the second stage consultation (now being assimilated) would produce such a strong reaction in favour of enfranchising post-tariff lifers that prior to laying matters before Parliament the First Defendant would be caused to change his mind. Thus, as at present, it can be said that what is before the Court is:

(i) only what the Government says it is intending to do, but before it has even laid proposals before Parliament;

(ii) what is, Mr Eadie submits, an impermissible attempt to interfere with Parliamentary processes.

48. Even therefore before considering the merits of the Claimant's case as to whether the Government is or ought to be obliged to introduce legislation in accordance with the Claimant's wishes, there is an important preliminary constitutional issue. Mr Eadie points to Wheeler, to which I have referred above. That was a case in which the Claimant was asserting that there ought to have been a provision for a referendum on United Kingdom accession included in the Bill proposed to be introduced into Parliament with regard to the Lisbon Treaty. Richards LJ gave the judgment of the Court, and the key passages are in paragraphs 46 and following:

(i) 46. In his submissions on behalf of the Speaker, Mr Lewis QC drew attention to two distinct constitutional principles relating to the position of Parliament. They are conveniently summarised by Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin), at para 46, following citations from Prebble v Television New Zealand Limited [1995] 1 AC 321 [1995] 1 AC 321 and other authorities:

(ii) 'These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts.'

The first of those principles is particularly relevant to the use to which certain Parliamentary material may be put, and is considered later. The second goes to the core of the claimant's case. In R v Parliamentary Commissioner for Standards, ex p Al Fayed . . . Lord Woolf MR said it was clearly established that 'the courts exercise a self-denying ordinance in relation to interfering with the proceedings of Parliament'. In R v Her Majesty's Treasury, ex p Smedley . . . Sir John Donaldson MR said that 'it behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so'; and against that background he went on to say, in relation to the particular Order in Council under challenge in those proceedings, that 'it would clearly be a breach of the constitutional conventions for this court, or any court, to express a view, let alone take any action, concerning the decision to lay this draft Order in Council before Parliament or concerning the wisdom or otherwise of Parliament approving the draft'. The court in that case was willing to consider whether such an Order, if approved by Parliament, would be ultra vires the enabling statute, but made very clear the care that needed to be exercised in relation to the limits of the court's role . . .

In our judgment, it is clear that the introduction of a Bill into Parliament forms part of the proceedings within Parliament . . .

The fact that the claim would involve an interference by the court with the proceedings of Parliament is a further decisive reason why the claim must fail."

49. What is at issue here is not only what it is that the Government proposes to put before Parliament, but what Parliament itself is to decide, for the Claimant asserts that any legislation -- ie, any legislation to be enacted as a result of Parliamentary debate -- must give the franchise to post-tariff lifers. Of course Mr Eadie submits that, given that all that is being addressed at the moment is the Government's present intention, quite apart from any change prior to Parliamentary consideration, Parliament itself may, after a debate, decide otherwise. That there are keen eyes open for any interference with human rights is clear from the 31st Report of the Joint Committee on Human Rights, dated 19th October 2009, which, over some muted opposition by Mr Eadie, Mr Southey put before me. It is clear that the members of that Joint Committee of both Houses have the decision in Hirst well in mind and are indeed concerned at what it sees as the Government's delay and reluctance in dealing with the issue. But the Claimant's complaint about what is not to be put before Parliament as part of the First Defendant's proposals, insofar as his case is not premature, seems to me clearly to offend against the principles enunciated in Wheeler.
50. There are further problems in the way of the Claimant:

(i) S6(6) of the HRA provides that, by reference to the provision in s6(1) that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right" an act "does not include a failure to . . . (a) introduce in, or lay before, Parliament, proposed legislation; or (b) make any primary legislation or remedial order".

(ii) It is plain that the Grand Chamber in Hirst itself expected and anticipated that whatever replaced the discredited blanket ban on prisoners' franchise would be decided by Parliament. Against the background in which the Court notes (in paragraph 80 of its judgment) that the judgment of the UK Divisional Court had been that "the nature of the restrictions if any, to be imposed on the rights of convicted prisoners to vote was in general seen as a matter for Parliament and not for the national courts", the Court concludes, at paragraph 84, as set out earlier, that it would "leav[e] it to the legislature to decide on the choice of means for securing the rights guaranteed by [the ECHR]":

(iii) "84. In a case such as the present, where Contracting States have adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No.1 . . . "

51. Mr Eadie further submits that, quite apart from its being inappropriate to interfere in relation to these questions of social policy prior to their consideration by Parliament, this is not even a case in which a court should interfere after consideration by Parliament, so that the question is a fortiori. He refers to the long and important line of House of Lords authorities which emphasises the reluctance which the Courts ought to have before interfering with, and the deference which the Courts ought to pay to, decisions of the elected legislature with regard to matters of sensitive social policy. He refers to R v DPP ex parte Kebilene [2002] AC 326, particularly per Lord Hope at 380E-381D, R v Lichniak [2003] 1 AC 903, per Lord Bingham at paragraph 14, R (Williamson & Others) v Secretary of State for Education and Employment [2005] 2 AC 246, per Lord Nicholls at paragraph 51, and R (Countryside Alliance & Others) v AG [2008] 1 AC 719, per Lord Bingham at paragraph 45.
52. I conclude therefore that any declaratory or other relief which is intended to interfere with the process by which new legislation resulting from the consultation process is now put before and debated by Parliament, is inappropriate and is not to be granted.
53. That disposes of this application, but I continue to consider, out of deference to the arguments of Mr Southey, whether, quite apart from this important constitutional principle, he has a case that relief ought to be given against the First Defendant on the basis that he, on behalf of the Government, is acting or intending to act in contravention of the ECHR, or inconsistently with what is required by Hirst. As I put to Mr Southey in argument, if he is to be entitled to bring a pre-emptive strike in respect of any proposals the Government may put before Parliament, on the basis that it is unlikely that they will involve giving the franchise to post-tariff lifers, he must establish before me that, if they do not do so, then such proposals will be inconsistent with Hirst. Thus he must show that the Grand Chamber in Hirst required that the franchise be extended to cover, if not all convicted prisoners, then certainly post-tariff lifers. I have already referred to the judgment of Gillen J in Toner at paragraph 9(iv), in which it was certainly his conclusion that Hirst did not lay down any such specific requirements. With Counsel's help, I have myself been taken through the Court's judgment in Hirst in detail. It is of course important to recall that Mr Hirst himself was a post-tariff lifer, as was recorded in paragraph 45 of the judgment, and the fact that it had been submitted to the UK Divisional Court that such prisoners were, in the context, 'hard cases', was plainly before the Court (paragraph 16). It is plain that there was some argument ad hominem, ie, specifically by reference to Mr Hirst's position, from paragraph 49 of the judgment, because the Government is recorded there as submitting that, even if it were to reform the law, Mr Hirst would still have been barred. Against this background however, it is plain from paragraph 72 of the judgment that the Court did not rule in or rule out any solution:

(i) "It would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post-tariff life prisoners or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No.1."

54. More specifically, the Government set out before the Grand Chamber its reasoning for retaining a bar on convicted prisoners, not dissimilar from the kind of reasoning which it has put forward in the consultation papers to which I have referred, and the Court expressly did not conclude that the Government's expressed aims were either untenable or per se incompatible with the ECHR, as is clear in paragraphs 74 and 75 of the judgment:

(i) "74. The Court would recall that Article 3 of Protocol No.1 does not, as other provisions of the Convention, specify or limit the aims which a measure must pursue. A wider range of purposes may therefore be compatible with Article 3. The Government have submitted that the measure pursues the aim of preventing crime by sanctioning the conduct of convicted prisoners and also the aim of enhancing civic responsibility and respect for the rule of law. The Court would note that at the time of the passage of the latest legislation the Government stated that the aim of the bar on convicted prisoners was to confer an additional punishment. This was also the position espoused by the Secretary of State in the domestic proceedings brought by the applicant. While the primary emphasis at the domestic level may perhaps have been the idea of punishment, it may nevertheless be considered as implied in the references to the forfeiting of rights that the measure is meant to give an incentive to citizen-like conduct . . . .

Although rejecting the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty, and especially the assertion that voting is a privilege not a right, the Court accepts that s3 may be regarded as pursuing the aims identified by the Government. it recalls that the Chamber in its judgment expressed reservations as to the validity of these aims, citing the majority opinion of the Canadian Supreme Court in Sauvé (No.2). However, whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, the Court finds no reason in the circumstances of this application to exclude these aims as untenable or per se incompatible with the right guaranteed under Article 3 of Protocol No.1."

55. It is also clear from paragraph 71 of the judgment, which I have cited, that the examples there given, of those who may be disenfranchised, such as those abusing a public position, are only examples.
56. Nothing daunted, Mr Southey submits that, even if Hirst left open the options for the Government, without ruling out any bar -- implicitly including a bar on those in Mr Hirst's position -- nevertheless he is still able to pursue a case that any disenfranchisement of post-tariff lifers is necessarily in contravention of the ECHR.
57. In R (Ullah) v Special Adjudicator [2004] 2 AC 350, Lord Bingham said:

(i) "It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."

58. However, Mr Southey relies on Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, where, at paragraph 31, Lord Hoffmann said that Lord Bingham's remarks "were not . . . made in the context of a case in which the Strasbourg court has declared a question to be within the national margin of appreciation. That means that the question is one for the national authorities to decide for themselves and it follows that different member states may well give different answers".
59. He also relies on the decision in Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519, in which, by a five to four majority, the Supreme Court of Canada, interpreting the Canadian Charter of Rights and Freedoms, concluded that a bar on convicted prisoners serving sentences of two years or more from voting in Federal elections contravened the Charter. McLachlin CJ, giving the majority judgment, concluded that the legislation was justified, but not proportionate. He concluded (in paragraphs 8-9) that the Court owed deference to Parliament but needed to ensure that the Legislature's "proffered justification" was "supported by logic and common sense". After addressing the various arguments put forward by the Government, the majority concluded that such disenfranchisement was not proportionate to the Government's aims. Supportive though such a majority judgment is in general terms to the argument put forward by the Claimant, such decision in Sauvé was expressly considered by the Grand Chamber in Hirst: see paragraphs 48 of the judgment, but also, and significantly, paragraph 75, which I have cited earlier, in which the citation was immediately followed by the Grand Chamber's own conclusion that it did not rule out the United Kingdom Government's 'proffered justification'. Just as Sauvé, helpful to the Claimant, was considered in Hirst, so too was matter to which my attention has been drawn by Mr Eadie to the contrary, namely the Code of Good Practice in Electoral Matters, promulgated by the "Venice Commission" for the Council of Europe in May 2002, which allowed for the possibility of the deprivation of the right to vote being based upon a criminal conviction for a serious offence (imposed by a court of law). This too, insofar as it was relevant (and Mr Southey refers to the different constitution of the Council of Europe) was known to the Grand Chamber in Hirst, and referred to by it in paragraph 32.
60. The Government's submission, described in paragraph 50 of the Grand Chamber's judgment as "the intertwined legitimate aims of preventing crime and punishing offenders and enhancing civic responsibility and respect for the rule of law" reappears in the first stage consultation paper, from which I have cited paragraphs 66-67, and in the second stage consultation paper, from which I have cited passages at pages 22, 25 and 26, but additionally at p23:

(i) "The United Kingdom has a 'margin of appreciation' in responding to the Hirst (No 2) judgment. The UK Government is not obliged to take a specific route prescribed by the Court, eg, to enfranchise all, or certain categories of, prisoner. The Government has consistently been clear that it disagrees that it would be appropriate for the franchise to be extended to all serving prisoners. In the case of Hirst (No 2), it has argued that there are sound reasons underpinning the removal of the right to vote from serving prisoners. The removal of the right to vote, on a temporary basis limited to the period of an offender's detention, pursues a number of intertwined aims designed to foster a healthy democratic society. The removal of the right to vote involves an additional element of punishment, which, because it persists for the period of detention, is directly linked to the seriousness of the offence and the circumstances of the offender.

(ii) But the removal of the right to vote -- which the Government recognises is a serious step -- is not only a punitive measure. It is different in nature and purpose to a prison sentence because it goes to the essence of the offender's relationship with democratic society. Its removal underlines to the prisoner the importance of that relationship, and his breach of it in committing a serious crime. The re-instatement of the right marks his re-entry into society and is aimed at enhancing his sense of civic responsibility and respect for the rule of law. The Government, of course, accepts, in line with the judgment, that any limitation upon the right must be proportionate, but it remains the Government' strong view that these aims continue to justify the removal of the right to vote in the case of some offenders."

61. While Mr Southey is right of course to refer to what Lord Hoffmann said about the requirement, or opportunity, for the "national authorities to decide for themselves" in paragraph 31 of his speech in Re G, that, in my judgment, does not address, at any rate in this case, the issue of the role of the courts, where there are arguments on both sides of an important social issue. I have already referred above to Mr Eadie's submission that the courts should not become involved, and should give deference to the legislature, where highly sensitive questions of social policy are in issue, but this is particularly so where they are highly contentious.
62. In Re G, the conclusion arrived at by the majority of the House (Lord Walker dissenting) that the existence of an irrebuttable presumption that an unmarried couple could not make suitable adoptive parents (as opposed, for example, to approaching such proposed adopters with scepticism, from the point of view of the interests of the child), plainly offended against the ECHR.
63. Lord Hoffmann states, in a passage upon which Mr Eadie particularly relies, as follows in paragraph 20:

(i) "The judge and the Court of Appeal both emphasised that the question of whether unmarried couples should be allowed to adopt raised a question of social policy and that social policy was in principle a matter for the legislature. That is true in the sense that where questions of social policy admit of more than one rational choice, the courts will ordinarily regard that choice as being a matter for Parliament: compare the cases of James v United Kingdom (1986) 8 EHRR 123, R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 681 and R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, to which I have already referred. But that does not mean that Parliament is entitled to discriminate in any case which can be described as social policy. The discrimination must at least have a rational basis. In this case, it seems to me to be based upon a straightforward fallacy, namely, that a reasonable generalisation can be turned into an irrebuttable presumption for individual cases."

64. Baroness Hale also emphasised, at paragraph 122 of her speech, that the court was intervening in the case before it because it was such a plain case:

(i) " . . . If, therefore, we have formed the view there is no objective and reasonable justification for this difference in treatment, it is our duty to act compatibly with the Convention rights and afford the applicants a remedy."

65. Further and significantly, a reason which plainly weighed with Lord Hope (see paragraph 55), was that a decision by the courts would not lead to practical difficulties:

(i) "55. I am not persuaded that extending eligibility to the appellants would give rise to practical difficulties of a kind that would make intervention by the courts inappropriate. All we would be saying is that they were to be treated, for the purposes of eligibility for adoption, as if they were married to each other. The assessment of their suitability as a couple is an entirely different matter. The facts must be examined as they are. Regard must be had to all the circumstances in deciding on any course of action, as Article 9 of the 1987 Order makes clear. A major revision of the law of adoption, such as that which has taken place in Great Britain, would no doubt require much additional work to be done by way of subordinate legislation and departmental guidance. But I do not see this as being made necessary by the decision about eligibility which we are being asked to make in this case . . .

66. The policy question thus plainly involves a balancing act and, assuming that not all convicted prisoners are to be enfranchised, would involve difficult questions as to which side of the line disenfranchisement would fall. As was said at paragraph 26 of Smith v Scott:

(i) "Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives."

67. Mr Southey submits that, notwithstanding what the Government has said in its consultation process and, perhaps, notwithstanding what may be said by others in the course of either consultation or consideration in Parliament, it is plain and obvious that, whatever side of the line other prisoners may fall, post-tariff lifers fall on the side of the line which ought not to be disenfranchised. He points to the judgment of the European Court of Human Rights in Stafford v UK [2002] 35 EHRR 32, where, at paragraph 80, the Court stated that:

(i) "Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murder cases, must be considerations of risk and dangerousness."

68. He thus contrasts what he calls the "punishment" element of the sentence, being the tariff, with the post-tariff period which must presumably be, on that analysis, "non-punishment". But I am far from sure that the Court in Stafford intended to refer to the "punishment" element as anything more than what was in fact the "retributive" element. Plainly, punishment has a number of justifications, one of which is retributive and another is reformative, and, in accordance with the penal policy adopted by the United Kingdom, which was in no way frowned upon by Stafford, whereby a post-tariff prisoner can continue to be detained if he is dangerous or a material risk to the public, then it must plainly be arguable that the purpose of a life sentence is not yet exhausted until the prisoner no longer presents such dangerousness and risk. In any event, the reverse does not seem to me to be plain and obvious. Gillen J said in Toner at paragraph 9(iv) cited earlier that he saw "nothing intrinsically objectionable" about the various options being explored in the first consultation paper.
69. Having carefully considered Re G, and the material before me, I cannot say either (paragraph 20 of Lord Hoffmann's speech) that the question of social policy in this case "does not admit of more than one rational choice" or (paragraph 27 of Lord Hoffmann) that any view can be expressed as to what is likely if the issue as to enfranchisement of post-tariff lifers were to go to Strasbourg. Both Lord Hoffmann and (paragraph 53) Lord Hope were of the view, irrespective, or no doubt in the light, of their own conclusions on a national basis, that if the issue in that case were to go to Strasbourg it was "not at all unlikely that . . . a court would hold that the discrimination of which the applicants complained violates Article 14". I cannot anticipate what would happen in Strasbourg, I cannot say what will happen in Parliament. I remain of the opinion that the Court is ill-equipped (as the Scottish Court in Smith v Scott recognised itself to be) to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.
70. Hence, even if I were not satisfied that interference at this stage, and prior to consideration by Parliament is wholly inappropriate, I would in any event refuse any relief. The application is dismissed.
71. MR EADIE: My Lord, that is very helpful. As I understand my Lord's judgment three findings have been made: first, the declarations sought are inappropriate and without substance; secondly, the issues of social policy would be appropriate for parliament to decide; and thirdly that this should have come, at least at this stage, to conclude with any degree of certainty that to exclude post-tariff lifers would be a breach of the Convention. In those circumstances, my submission is that the claim has failed in its entirety and it would be appropriate to make an order for costs. My Lord is aware from the hearing that the defendant is legally aided, and in those circumstances the appropriate order which we seek is that the claimant should pay the Secretary of State's reasonable costs, to be assessed subject to section 11 of the Administration of Justice Act 1989. That is the only application I make.
72. MR JUSTICE BURTON: The effect of that?
73. MR EADIE: It is effectively football pools; so only if he wins the pools does the order get to be enforced against him. I think that is the form of order now.
74. MR JUSTICE BURTON: What about the second defendant?
75. MS THELEN: The second defendant asks for a similar order, my Lord.
76. MS HIRST: My Lord, I cannot respond to that.
77. MR JUSTICE BURTON: Thank you very much. I make that order.
78. MS HIRST: My Lord, there is one further matter. May I seek permission to appeal.
79. MR JUSTICE BURTON: I consider for the reasons I have given that the application is hopeless. You must go elsewhere. I dealt with the matters, I think, on a layered basis, so all your arguments, which were very ably put forward by Mr Southey, were dealt with. I think there were five layers of argument, and you lost on all five, so even if you were to have a chance on one of them, it seems to me plain that you would not have a chance of winning.