Prisoner voting: now a matter of EU law

Jo Shaw, Salvesen Chair of European Institutions

Article 39(2) of the Charter of Fundamental Rights provides:

‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.’

In its brief and rather low key judgment in Delvigne (Case C-650/13; ECLI:EU:C:2015:648), which was handed down on 6 October 2015, the Grand Chamber of the Court of Justice has put flesh on the bones of this provision. It concluded that national measures taken to determine who is entitled to vote in European Parliament elections fall within the scope of EU law as they must be considered to be implementing EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights. Consequently, Article 39(2) is applicable in such a situation, as are other Charter Rights. The Court’s judgment follows the recommendations of Advocate General Villalon’s Opinion (ECLI:EU:C:2015:363), albeit with much more laconic reasoning and without reference to the ECHR or Strasbourg case law.

The CJEU reviewed certain French rules depriving the applicant of his civic rights, including the right to vote and to stand for election. This sanction was imposed, by operation of law, consequent upon the applicant’s conviction for a serious crime and his receipt of a custodial sentence. However, the Court concluded that measures depriving a person who has been convicted of a serious crime of the right to vote on an indefinite basis were not precluded by Article 39(2) CFR. The Court did not refer to the European Convention on Human Rights and Fundamental Freedoms, or the well-known prisoner voting case law of the European Court of Human Rights. But it did discuss the need for any limitations on the right to vote to be proportionate, in the sense of pursuing a legitimate aim of general interest and of taking into account the nature and gravity of the criminal offence committed and the duration of the penalty imposed. The Court further held that there was no infringement of Article 49 CFR regarding the non-retroactivity of criminal sanctions. This part of the case will not be discussed further in this blog.

Prior to Delvigne, the only significant excursion by the Court of Justice into the field of European Parliament voting rights was in 2006. In Spain v UK (Gibraltar), the Court rejected an argument led by Spain that the scope of the franchise for European Parliament elections was determined by EU law. This precluded a challenge brought by Spain against the UK’s decision to include Commonwealth citizens within the Gibraltar franchise, when extending the scope of European Parliament elections to that territory pursuant to the Court of Human Rights judgment in Matthews. The same point about Articles 1(3) and 8 of the 1976 Act on Direct Elections not expressly or precisely defining who are entitled to vote in EP elections was repeated in Eman and Sevinger (Aruba), decided on the same day. Moreover, the Court in Eman and Sevinger expressly stated that the provisions on citizenship in what was then Part Two of the EC Treaty do not confer an ‘unconditional right to vote and to stand as a candidate in elections to the European Parliament’ on citizens of the Union (para. 52). The Court highlighted that the citizenship provisions in Part Two were aimed at guaranteeing access to the vote for those EU citizens resident outside the state of which they were nationals. The Court also went on to state that nothing precluded Member States using the criterion of residence in order to determine who had the right to vote, relying in that respect on ECHR case law. However, the Court did conclude that an equal treatment issue arose in the circumstances of the case, because of the difference in approach under Netherlands law for two groups of Netherlands nationals, who were not resident in the metropolitan Netherlands. Those resident in Aruba could not vote, and yet those in third countries could vote. This difference in treatment (under the general equal treatment principle) needed to be justified.

The judgment in Delvigne draws on the groundwork laid down in Eman and Sevinger, in its application of the proportionality principle to scrutinise national arrangements on prisoner voting. The applicant was convicted of a serious crime in 1988 and given a custodial sentence of 12 years. By operation of the law then applicable, that sentence also entailed the loss of his civic rights, as he had been convicted of a serious offence. Subsequently, new Criminal Code provisions abolished the ancillary penalty of loss of civic rights by operation of law, and laid down that a total or partial deprivation of civic rights must be the subject of a court ruling, and may not exceed ten years in the case of conviction for a serious offence. However, Delvigne himself was not affected by the provisions of the new Criminal Code, as his deprivation of rights resulted from a criminal conviction that became final before the new Criminal Code entered into force. In the French courts, he contested a decision to remove his name from the electoral register in the district in which he was residing, an act which prevented him voting in the 2014 European Parliament elections, arguing this was contrary to EU law. To assist its deliberations, the French court referred a series of questions to the Court of Justice.

The French government (backed by interveners Spain and the UK) contested the jurisdiction of the Court, arguing that there was no connection to EU law given that it lies within the competence of Member States to determine who can vote in European Parliament elections. The Court noted that EU law is applicable, under Article 51 CFR, only where Member States are implementing EU law. Citing Gibraltar and Eman and Sevinger, the Court acknowledged (para. 31) that the Act on Direct Elections does not expressly and precisely determine who are to be entitled to vote in EP elections. However, in exercising that competence, Member States are bound ‘by the obligation set out in Article 1(3) of the 1976 Act, read in conjunction with Article 14(3) TEU, to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret’, a point which was supported by the European Commission, the European Parliament and the German Government in their observations. This creates the connection to EU law.

The words ‘direct universal suffrage’ have been present in EU primary law for more than 50 years, as they were included in the original Treaty of Rome, admittedly as an aspiration for direct elections to be held to the European Parliament. For nearly 40 years (since the 1976 Act on Direct Elections), the aspiration has been given concrete form, through a procedure to ensure that the citizens of the Member States elect the members of the European Parliament. Since the Matthews case before the ECtHR, it has also been clear that the EP is a legislature vis-à-vis those citizens, and thus that the elections are subject to the overarching norm of universal suffrage set out Article 3 of Protocol 1 ECHR. This is reinforced by Article 14(3) TEU which adopts the same words as Article 39(2) CFR. Why has it taken so long to establish that in principle Member States’ franchise rules in respect of the holding of European Parliament elections are subject to universal suffrage norms within the framework of EU law (as opposed to by reference to the ECHR alone, as per Matthews)? Perhaps the arrival of the Charter of Rights has made a difference. And yet the texts are precisely the same. As the Court observed (para. 44):

As regards Article 39(2) of the Charter, it is apparent from the considerations in paragraph 41 of the present judgment that this constitutes the expression in the Charter of the right of Union citizens to vote in elections to the European Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976 Act.

Article 39(2) appears, therefore, to add no additional substantive heft to the principles of universal suffrage compared to the pre-Charter situation. However, the explanations relating to the Charter do make it clear that Article 39(2) takes over the basic principles of the electoral system in a democratic state. This is presumably a reference to ECHR case law on Article 3 of Protocol 1. And it is perhaps the clear articulation of the scope of EU law as relating to situations where Member States are implementing EU law contained in Article 51 CFR that prompts the CJEU into a clearer holding that franchise restrictions are subject to the basic principles of EU law than one finds in Eman and Sevinger. The result is the same, but the route taken is much more elegant. So in that respect the Charter does help the Court of Justice to put itself in the position to cast its eye over the French prisoner voting rules.

The resolution of the substantive issues in the case by the CJEU is very brief. As any ban on prisoners voting is a restriction on a fundamental right protected by the Charter (the right to vote in EP elections), it needs to be assessed as a limitation under Article 52(1) CFR. The CJEU quotes the conditions under which limitations on the exercise of rights are permissible: they must be provided for by law, they must respect the essence of those rights and freedoms and, subject to the principle of proportionality, they must be necessary and genuinely meet objectives of general interest recognized by the European Union or the need to protect the rights and freedoms of others (para. 46).

It was clear that the ban is provided for by French law (and indeed in a later part of the judgment not discussed here, the Court concluded that the approach taken by the French legislature to maintaining the voting ban in respect of those whose sentence had already become final before the entry into force of the new law was not contrary to Article 49 CFR). Second, excluding certain persons under certain conditions, on account of their conduct, does not affect the essence of the right (para. 48). Finally, and perhaps crucially for those who were waiting for this case from the side of the UK, with its fraught debate on prisoner voting, the Court stated that ‘a limitation such as that at issue in the main proceedings is proportionate in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty’ (para. 49). And that was pretty much all the Court had to say on the matter. It chose to decide the proportionality issue itself, rather than referring this back to the national court. The Court noted the French observations that Delvigne was made subject to a deprivation of civic rights as a result of being sentenced to a term of 12 years’ imprisonment for a serious crime, and that he also had the possibility of applying for and obtaining a court order lifting the sanction.

As a case on the Charter of Rights, Delvigne does not break new ground although it does provide helpful clarifications, especially when one looks at the Advocate General’s Opinion. As has been argued previously, it follows quite naturally from Eman and Sevinger and from text of Article 39(2) CFR that the Court would conclude that domestic limitations upon the European Parliament elections franchise would fall within the scope of EU law, and that as such they would be subject to a proportionality test. The value of the case is that it makes the point explicit, whereas the challenge after Eman and Sevinger was to figure out from the Court’s judgment what exactly was the link with EU law that gave the Court jurisdiction to examine the character of the Dutch state’s policies on external voting in EP elections and to find them to be, in effect, arbitrary in character (by applying the general Aristotelian principle of equal treatment). Indeed, it would have been better if the Court in Eman and Sevinger had followed the Advocate General at that time (see paras. 69-71 of the Opinion), and concluded that there is (has always been since direct elections?) a freestanding (but obviously not unlimited) ‘right to vote’ in EP elections on the part of EU citizens. Part of the problem has been that this right to vote (as an expression of universal suffrage in a democratic context) has often been confused with the right on the part of non-national EU citizens in the Member State of residence (which is an expression of the importance that EU law attaches to the integration of migrant EU citizens in their host state, so that they do not in fact lose rights as a result of mobility). In Delvigne, the Court carefully separated the two and made it clear that Article 39(1) CFR, which corresponds to Article 20(2)(b) TFEU, does not apply in a case such as this. Of course, that does not resolve precisely what mix of Articles 39(1) and 39(2), plus associated TFEU provisions, might apply to a case involving a non-national EU citizen prisoner subject to a voting ban in respect of EP elections in the host state, as arose in the UK in the case of Teshome v The Lord President of the Council ([2014] EWHC 1468).

The major difficulty with the judgment in Delvigne is that unlike the Advocate General, the Court gives no clue as to whether it has read the case law of the European Court of Human Rights on Article 3 of Protocol 1, and thus how it feels that the tests and standards which it applies based on Article 52 stacks up against the approach taken to contracting state discretion on prisoner voting in cases such as Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663. The AG’s conclusion was the legislation such as that at issue in Delvigne was not precluded by Article 39(2) CFR ‘provided always that it does not prescribe general, indefinite and automatic deprivation of the right to vote, without a sufficiently accessible possibility of review, the latter particularly being a matter which it is for the national court to establish.’ This sticks close to the ECHR rubric.

It is beyond the scope of this blog to discuss in detail the fraught political process, the interactions between domestic case law and Strasbourg case law, and the tentative steps taken within the UK Parliament in the form of the Draft Voting Eligibility Bill to find a compromise between Strasbourg and what appears to be the mainstream political opinion in the UK political elite that giving the right to vote to prisoners is somehow abhorrent. The twists and turns of this narrative are presented in full in a regularly updated House of Common Standard Note, which provides a handy timeline. Prisoner voting has become, in the UK, a lightning rod conducting fears about an over-interventionist Court of Human Rights, generally underspecified worries that somehow the Human Rights Act overprotects the human rights of those ‘less deserving’ of those rights, and ongoing sensitivities about the proper province of the courts, including the domestic courts, and the legislature in relation to such matters. The domestic courts have sought to avoid conflict by making it clear that they have nothing more to say on the issue of prisoner voting in relation to the ECHR, and that they will not design a scheme in compliance with the ECHR even if Parliament refuses to act. Some judges, such as Lord Sumption in the Supreme Court in Chester and McGeoch, have been critical of the Strasbourg approach.

Indeed, for many observers and members of the political and indeed legal elite, prisoner voting offers the ideal opportunity to ‘stand up to Europe’, and to insist that human rights should receive a uniquely ‘British’ interpretation. Unfortunately, it now seems impossible to have a measured policy debate on the matter of prisoner voting in the UK and the anomalies thrown up by the current system, although the joint committee of the two Houses of Parliament charged with looking after the issue of prisoner voting whilst it remains in the long grass into which it has been kicked by successive governments has done a good job of holding a consultation and producing a balanced report making some useful compromise suggestions about how to bring UK law into line with what Hirst (No. 2) and Scoppola (No. 3) appear to require. Nothing further has happened, and the UK Government continues to send regular letters to Strasbourg, indicating that it is waiting for this, or that judgment, to appear – most recently Delvigne itself before doing anything further. At least one influential legal commentator has called on the Minister of Justice Michael Gove, who has shown himself to be somewhat more liberal-minded than many had expected in his relatively new political role, to seize the opportunity of this case to lead on legislation giving at least some prisoners the right to vote. The Draft Voting Eligibility Bill may now indeed be retrieved from the long grass and given further consideration, although no parliamentary time has been set aside. Meanwhile, opponents of prisoner voting continue to bring forward private members bills before the Houses of Parliament to reinforce the current position. Liberal voices arguing that Strasbourg does not go far enough can only look on and hope for a radical change in the political wind.

The judgment was not generally received with hostility in the UK. Much of the newspaper commentary seemed to assume that it would make no difference to the UK position, largely because of a misreading of the CJEU’s acceptance that the particular ban put in place by France was in and of itself proportionate, and because they went little further than reading the formal part of the judgment, which reads:

Article 39(2) [CFR]…must be interpreted as not precluding legislation of a Member State…which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime…’

This seems at first sight to be more of an endorsement of states’ rights than it really is. In fact, the judgment leaves many issues open for the UK courts to face as they receive the next wave of prisoner voting rights applications, taking advantage of the new EU law flank opened up by Delvigne, assuming political inaction continues. Indeed, legal commentary has been much more alive to the implications. Most obviously, it poses a direct challenge to the conclusions of the Supreme Court in the 2013 case of Chester and McGeoch that it was not possible to make an argument grounded in EU law to support a case brought in the domestic courts seeking a remedy in respect of the exclusion of prisoners in UK jails excluded from EP voting rights. Lord Mance’s lengthy consideration of the issue of EU law raised by the applicants, in which he relied upon a contorted interpretation of Eman and Sevinger according to which it was the EU law right given to non-national EU citizens which somehow triggered the jurisdictional link in that case rather than freestanding protection of universal suffrage in EP elections, led him to conclude that EU law was not applicable. His reasoning is worth quoting in detail:

The Court of Justice [in Eman and Sevinger] did not therefore endorse Advocate General Tizzano’s broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty.

Once again, in Delvigne, the Court has declined to refer to the Strasbourg case law, but even so the proportionality test it has applied within the field of EU law may present a minefield for national courts, which must now open up their domestic prisoner voting rules for scrutiny. Is it proportionate simply to make the ban match the sentence (as opposed to a ban which can continue beyond the sentence, but is subject to review, as is the case in France), or does proportionality implicitly require the seriousness of the crime to be taken into account? It is hard to imagine that these matters can be fleshed out without reference to the Strasbourg case law, where they have been most fully canvassed. The judgment of Lady Hale in Chester and McGeoch provides perhaps the most overt sympathy on the part of the UK judiciary towards the Strasbourg position that the UK’s comprehensive ban approach is simply too lacking in nuance to satisfy the standard under Article 3 of Protocol 1 as articulated in Hirst (No. 2) and modulated in Scoppola (No. 3). Applying a custody threshold does not clearly articulate the aim that disenfranchisement – not in and of itself illegitimate – seeks to promote, and clearly custody thresholds, shifting over time, will make the question of whether any particular person convicted of any particular crime can vote in any given election to some degree arbitrary. The Supreme Court will undoubtedly have to return to these issues, taking guidance from the CJEU ruling in Delvigne and applying it to the UK context. Given the refusal to make a reference on the issue of scope in Chester and McGeoch, the Supreme Court probably will not want to make a reference on the issue of proportionality. But given the uncertainties that Delvigne leaves standing, it would probably be a useful opportunity for the Court of Justice to put a little more flesh on the bones of the proportionality test that it has articulated. But it may be that the CJEU would be as unwilling a recipient of such a reference as the Supreme Court would be a generator.

Moreover, now that the issue of a freestanding right to vote in EU law as a reflection of the principle of universal suffrage which underpins democratic elections to the European Parliament seems settled, other limitations on the franchise may be challenged before the national courts in the UK and elsewhere, including external voting restrictions and restrictions on voters deemed to lack capacity by reason of disability. The Brexit referendum franchise in the UK may perhaps also be subject to challenge based on this argument.

Finally, once any or all of these issues are settled, there will remain the tricky question of remedies in the domestic legal order, which the EU law route opens up in ways that the cases in the UK based on the Human Rights Act and Strasbourg case law do not, by virtue of the supremacy of EU law and the relationship between the EU legal order and the national legal order. Two options are likely to be discussed in detail, namely the disapplication of the domestic rules and the possibility of damages for state liability. Anticipating that he might be wrong on the issue of the scope of EU law, Lord Mance already addressed these pre-emptively in Chester and McGeoch. He argued that even if he were wrong about the issue of the scope of EU law, it would be simply impossible for a national court to disapply UK law because there would be no way of ‘reading down’ the Representation of the People Act 1983, which contains the voting ban, without putting in place positive action including an administrative process to allow some prisoners to exercise their right to vote, if the ban applied in their particular case was deemed disproportionate. But applying proportionality to such a blanket ban is indeed a tricky issue. Consistent with his approach to interpreting EU law in such a way as to maximize national discretion, Lord Mance also interpreted the Francovich principles regarding state liability so as to suggest that in any event there could have been no successful action for damages.

Barnard & Peers: chapter 9, chapter 3

Photo credit: www.carbonated.tv