people”. In circumstances where the Grand Chamber accepted as a legitimate aim
of disenfranchisement “enhancing civic responsibility and respect for the rule of
law” (Scoppola, para 90), the United Kingdom was, as a participatory democracy,
entitled to withhold the vote from those serving sentences for offences sufficiently
serious to justify such a sentence, including those who, after their tariff period,
could not satisfy the Parole Board that it was “no longer necessary for the
protection of the public” that they should be confined (Crime (Sentences) Act
1997, section 28(6)(b)).
31.
Secondly, the Grand Chamber in Hirst (No 2) (para 79) attached some
significance to a suggested lack of “evidence that Parliament [had] ever sought to
weigh the competing interests or to assess the proportionality of a blanket ban on
the right of a convicted prisoner to vote”, adding only:
“It may perhaps be said that, by voting the way they did to exempt
unconvicted prisoners from the restriction on voting, Parliament
implicitly affirmed the need for continued restrictions on the voting
rights of convicted prisoners. Nonetheless it cannot be said that there
was any substantive debate by members of the legislature on the
continued justification in light of modern day penal policy and of
current human rights standards for maintaining such a general
restriction on the right of prisoners to vote.”
32.
The majority in Scoppola did not mention this factor, as Judge Thór
Björgvinsson, dissenting, pointed out at paras OI-09 and OI-15. Nevertheless, the
Attorney General submits that it is relevant that Parliament has, since Hirst (No 2),
conducted three formal debates, in Westminster Hall on 11 January 2011, in the
Commons on 10 February 2011, when MPs voted 234 to 22 to maintain the status
quo, and again in the Commons on 22 November 2012, after the Lord Chancellor
introduced a draft Bill, the outcome of which is not yet determined. Mindful of the
injunction in the Bill of Rights 1688 “That the Freedome of Speech and Debates or
Proceedings in Parlyament ought not to be impeached or questioned in any Court
or Place out of Parlyament”, the Attorney General did not suggest that we should
seek to evaluate the quality of the debate in Parliament. But he relied upon the fact
of debate and the continuation following it of the ban on prisoner voting as
underlining his submission that the Convention rights should be understood and
applied in a way respecting the choice made by the institution competent to make
such choices in a democracy. He pointed out that the Court in its recent decision in
Animal Defenders International v United Kingdom (Application No 48876/08, 22
April 2013) demonstrated the “considerable weight” that it was prepared to attach
to “exacting and pertinent reviews, by both parliamentary and judicial bodies, of
the complex regulatory regime governing political broadcasting in the United
Kingdom and to their view that the general measure [prohibiting religious or
political advertising on radio and television] was necessary to prevent the
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