On the face of it, the Supreme Court judgment in Moohan and the Divisional Court decision in the case of Unison (No.2), R (on the application of) v The Lord Chancellor don’t have a lot in common, other than both being delivered in the last couple of days. In one case, a prisoner challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013, on the grounds that its exclusion of prisoners from voting in the referendum was counter both to Article 3 of Protocol 1 of the European Convention on Human Rights and to the (putative) common law right to vote. In the other, the union Unison challenged the imposition of fees on would-be employment tribunal claimants, claiming that this denied any effective access to justice to many – or most – potential claimants, while also discriminating indirectly against some (poorer) groups. In both cases the decision went against the claimant.
I think they do have something in common, both in the way they were decided and in the reasons why they were brought. In this and the next couple of posts I’ll be explaining why I think both of these were bad – and dangerous – decisions. (Background and discussion: Mark Elliott on Moohan; Lauren Godfrey on Unison (No.2), R (on the application of) v The Lord Chancellor.)
Moohan first. The Supreme Court was divided in Moohan, but the majority drew a fairly straightforward distinction between the Scottish referendum and the ECHR’s
free elections [to be held] at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature
and thereby carried out one of the least lovable but, arguably, most important functions of the courts: telling claimants that, however good their case might seem, they can’t win it that way. (Lords Kerr and Wilson argued that the referendum was, potentially, the first stage in the formation of a new legislature and hence did in fact engage the people’s right to free expression in the choice of legislature. This seems like a stretch.)
Anyway, so far so uncontroversial – a disappointing outcome for believers in prisoners’ votes, but a reasonable one. The problems start, for me, with the subsidiary ‘common law’ argument. I’ll quote from the case report. Have patience; I’ve cut the quotes down as far as possible, but no further.
I do not think that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate. … for centuries the right to vote has been derived from statute. The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise. … [A] common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 [Representation of the People] Act. … the appellants’ proposition has to be tested against the provisions of the 1983 Act. So tested, I am satisfied that there is no common law right of universal and equal suffrage
While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate … But such a circumstance is very far removed from the present case, and there is no need to express any view on that question.
It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd.
Lord Kerr (who dissented from the majority decision):
The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. … It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law. … I acknowledge, however, the force of the point made by Lord Hodge that, insofar as a claim to a common law right to vote conflicted with sections 2(1)(b) and 3(1) of the Representation of the People Act 1983, it could not succeed.
Lord Hodge’s argument is, surprisingly, both crude and incoherent. Crudity in legal argument isn’t necessarily a bad thing – sometimes “you can’t do that” is all there is to say – but incoherence is more of a concern. The question at issue is whether a common law right can take precedence over a specific statutory provision. Hodge’s reply is that this can’t happen, because if it did the result would be… to give a common law right precedence over statute: “the appellants’ proposition has to be tested against the provisions of the 1983 Act”; “a common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 Act”. You can’t do that, in other words, because that is a thing that you can’t do.
It’s a circular argument – and a tight circle at that – but that’s not to say that it’s invalid. The argument gets more difficult – and, I would say, incoherent – when Hodge argues that, while the common law cannot extend the franchise, it could if necessary prevent its curtailment. But if, for example, a Disenfranchisement (Females) Act had been passed into law (and it wouldn’t have much effect until it had), then to “declare such legislation unlawful” would be precisely to “extend the franchise beyond that provided by parliamentary legislation”: parliamentary legislation would have provided that women should not vote. Hodge could argue that the ‘curtailment’ argument referred specifically to drastic measures in resistance of a parliamentary coup, and make the distinction with the prisoners’ votes issue that way: nobody would argue that the clauses in the 1983 Act debarring prisoners from voting represent “a parliamentary majority abusively [seeking] to entrench its power by a curtailment of the franchise”. But then the question is back with Hodge: why should “the common law, informed by principles of democracy and the rule of law and international norms” not have a voice when less extreme encroachments on democracy are at issue? Hodge’s argument seems to be that the common law should be like King Arthur and lie sleeping until England’s hour of need; I don’t see how he justifies this assumption.
Lady Hale’s argument is more coherent, but coherence is bought at rather a high price. She argues that voting rights are, have always been and will always remain a creature of statute; this has the slightly alarming implication that (contra Hodge) there would in fact be no common law case against the Disenfranchisement (Females) Act. Faced with a conclusion like this, it’s worth asking where the argument went astray. It’s certainly true that there was no common law right of universal suffrage until universal suffrage had been established by statute; however, I don’t think this entitles us to conclude that there is now no such right. The assumption in Hale’s argument seems to be that the common law is some sort of pre-statutory substrate dating back to King John, by now very largely paved over by successive efforts to legislate and codify. Hodge’s argument suggests a very different way of thinking about the common law: as a body of shared and more or less clearly articulated assumptions; a framework in which to think about, and debate the limits of, socially-responsible law-making and interpretation of laws. As far as universal suffrage is concerned, in any case, the line between the arbitrary inventions of statutory enactment and the realignment of legislation with common law principle cannot be drawn as clearly as Hale would like. If 1832 and 1867 redefined the franchise, it could be argued that the franchise extensions of 1928 and 1969 represented reactive vindications of the principle of universal suffrage, in the light of changing understandings of the meaning of ‘universal’. Lady Hale’s argument suggests that there is no particular reason why the franchise was extended to all 18-year-olds in 1969, and not to (for example) only those 18-year-olds whose parents had at least one higher degree, or all 18-year-olds plus 17-year-olds whose surname began with a P. Common law principles articulating themselves through statutory enactment? Perhaps that would be a mystification, but Hodge’s model of “common law, informed by principles of democracy and the rule of law and international norms” seems relevant here. Certainly it would seem to fit the bill better than a kind of sawn-off positivism, which declares that all there is to say about (electoral) law is that it is what the executive happens to have declared to be law.
Lord Kerr’s argument, lastly, is more subtle than Lord Hodge’s but even less coherent. He acknowledges that the common law has developed pari passu with statute, and that it may represent a resource of principles by which to judge, and potentially disqualify, statute-made law. He even floats the possibility that the common law might judge the exclusion of prisoners from voting and find it wanting. His argument comes back to earth with a bump, however, with a qualified acknowledgment of Hodge’s argument, that a common law principle cannot overrule a statutory provision. And, of course, if that’s the case there’s no argument to be had here. (Except that Hodge himself acknowledged that it’s not invariably or necessarily the case…)
We’re used to legislation being ‘read down’ to comply with the European Convention on Human Rights; the provisions of the ECHR are treated, if not as a hard limit, certainly as a hard reference-point, any conflict with which needs to be managed down and (as a last resort) flagged up. What this means is that there is a stock of individual rights which (it is generally acknowledged) government action and statutory law-making are expected to respect, however imperfectly these rights may be vindicated in practice. This isn’t the only way to vindicate citizens’ rights against the law and government, and may not be the best; it involves a reliance on (on one hand) the text of the Convention and (on the other) the specialised jurisprudence of its professional interpreters, with the alternate risks of treating the text as holy writ and reading contemporary assumptions (not to mention contemporary debates and contemporary jargon) into it. Personally, I have a temperamental sympathy with the idea of deriving such rights and safeguards from common law; it chimes with my Fullerian views on the law as an inherently moral project. But Moohan, and these rather scrappy comments from three Lords of Appeal in Ordinary, suggest that this may be a utopian prospect.
The Court paid little attention to the current government’s entrenched opposition to giving prisoners the vote, and rightly so. The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does. Good job there’s no realistic prospect of Britain repudiating the ECHR, eh readers?
Update 21st December
One enterprising visitor yesterday found their way to a previous post on this topic (which I’d completely forgotten), The barren weeks. In that post, written in 2011, I quoted Lord Wilberforce’s dictum from 1982 – “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication” and described this as a statement of ‘the common law position’. What I didn’t do in that post was to acknowledge that the vote was one of those rights which had been ‘expressly’ taken away: prisoners’ voting rights in England and Wales – always circumscribed – were removed in the Representation of the People Act 1969, and this ban was restated in the 1983 Act.
In the 2011 post I denounced the voting ban as running flatly counter to the position expressed by Wilberforce. This was hasty; a more attentive reading shows that Wilberforce’s statement is entirely compatible with prisoners being statutorily deprived of the vote – or any other identifiable right, for that matter. In fact, the apparent contradiction between Wilberforce’s statement and the relevant legislation demonstrates how accommodating the common law can be, and will tend to be. I asked yesterday whether common law could take the activist role envisaged by Lord Hodge in relatively normal conditions. Perhaps it’s also worth asking whether even a catastrophic governmental assault on the rule of law would rouse the common law from its complaisance – and whether we would recognise such an assault in time.