Facts:
The claimant prisoner applied for judicial review of a decision refusing to allow him to vote for UK elections. 

He had been sentenced to life imprisonment in 1978 for the rape and murder of his niece, but had become eligible for release after the expiry of the minimum term. However, he was found by the Parole Board too dangerous to be released into the community. He thus remained in custody as a ‘post-tariff lifer’. 

In 2005 the ECtHR in Hirst v UK (No.2) (Application no. 74025/01) held that a blanket ban on the right of prisoners to vote, as codified in s.3 of the Representation of the People Act 1983, violated Protocol 1 article 3 of the European Convention of Human Rights, the right to free elections. Following that decision, the claimant sought to register in order to vote in the elections of the European Parliament. Section 8 of the European Parliamentary Elections Act 2002 entitles citizens to vote in European elections. This section is a corollary of s.3 of the 1983 Act in the sense that it establishes that the same people who can vote in UK elections are also admitted to vote in European elections. In September 2009, the UK government carried out a Consultation Paper entitled ‘Voting Rights of Convicted Prisoners detained within the UK’ and subsequently set up a timetable for the introduction of legislation amending s.3 of the 1983 Act. However, the proposals contained in the consultation papers reveal that the government firmly opposes the enfranchisement of prisoners sentenced to four years imprisonment or more and also thinks it undesirable to enfranchise all post-tariff prisoners like the claimant.

Claim:
The claimant put forward a three-fold argument: Firstly, he claimed that s.8 of the European Parliamentary Elections Act 2002 should be read down in keeping with s.3 of the Human Rights Act 1998 and/or re-interpreted so as to conform with EC law by virtue of the Marleasing principle (Marleasing SA v La Comercial Internacional de Alimentacion SA, C-106/89 [1991] 1 ECR 4135). Secondly, he suggested that the court should declare s.3 of the 1983 Act, which prevented him from voting in parliamentary and local government elections, and alternatively s.8 of the 2002 Act, which prevented him from voting in European elections, incompatible with his rights as a post-tariff lifer. Thirdly, he alleged that any recently proposed legislation by the UK government would not comply with the Convention unless it provided for enfranchisement of a post-tariff lifer.

Holding:

1. Reading down
Burton J held that neither the interpretative methodology of ‘reading down’ under s.3(1) HRA 1998 nor the interpretative obligation of a national court under the EC principle of Marleasing are available in the instant case. Since the statutory provision of the 2002 Act sets out that the rules for European elections are the same as those for UK national elections, the same principles concerning the application of s.3(1) HRA 1998 must be followed for both statutory provisions. If s.3 of the 1983 Act cannot be read down, the same must be said for s.8 of the 2002 Act. Furthermore, if the court read down the sections in this case, it would effectively take on a legislative function. According to Burton J this is particularly inappropriate if it is considered that Parliament is in the process of changing the challenged provisions at the very moment.

2. Declarations of Incompatibility
The court set out that the claimant had brought the proceedings primarily in order to secure his right to vote for the future. However, since the government is taking steps to bring in fresh legislation, a scheme will be in place to deal with the claimant’s situation soon. Furthermore, a declaration of incompatibility had already been made in a UK court in relation to s.3 of the 1983 Act (Smith v Scott [2007] C.S.I.H. 9) upon which s.8 of the 2002 Act entirely depended. Accordingly, the court held that a new declaration of compatibility would be duplicative and was therefore not needed. 

3. Proposed Legislation
The court noted that the shape and content of the proposed legislation was yet wholly undecided. Burton J stressed the importance of the principle laid down in Wheeler, that the freedom of speech in Parliament and the separation of powers between the judiciary on the one hand and the executive and legislature on the other must be respected, especially with regard to matters of sensitive social policy as in the instant case.

Nonetheless, the court reiterated that any legislative proposal for electoral reform would need to comply with the decision of the ECtHR concerning the blanket ban. In responding to Hirst v UK, the UK has a ‘margin of appreciation’ and is therefore not obliged to take a specific route prescribed by the court. 

Thus, the blanket ban in s.3 of the 1983 Act, which was declared to be in breach with Protocol 1, Art.3 of the ECHR in 2005 is still applicable until the legislative vacuum is filled. Burton J refused permission to appeal.