This month the long standing issue of prisoner votes in the UK has again reared its head. The European court of Human Rights ruled in the 2005 case Hirst v. The United Kingdom (no2) against the UK’s long standing ban on prisoner voting. The Court held that “A blanket denial of voting rights to prisoners cannot satisfy the proportionality requirement” inherent in Article 3 of the First Protocol of the Convention:
“The High Contracting Parties (Signatory Countries) undertake to hold free elections 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.”
Although the court appreciated that such rules should be left as much as possible to national policy makers, it agreed unanimously that such a “blanket” ban was unacceptable. The court also mentioned the concept of proportionality, and the failure of the UK legislature to at any point weigh up the proportionality of the ban, however 5 judges of the Court dissented on this, pointing out that it is not for the ECHR to direct national legislatures on how to deliberate law making.
The Court also rejected the UK’s use of comparative law to support its case. It held that the Canadian example could not be considered, as the Canadian decision was rendered on such a narrow margin (5-4 majority), and furthermore, the South African example could not be presented because of the different kinds of obstacles to voting presented in comparison with the UK.
The UK government also stressed that across the Convention Signatory Countries (or High Contracting Parties) there was little or no consensus on how to handle prisoner voting. (13 countries don’t allow it). The Court responded to this, holding that a minority of Signatory States had similar laws to that of the UK, and regardless, the absence of consensus on an issue is not determinative on the Court not to make a decision.
The important finale of the Court is to hold that a “general, automotive 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”.
This week, 5 years, 2 Prime Ministers, and 1 General election later, the European Court of Human Rights has warned the UK that unless it acts to insert the judgement in law, the Court will begin to award compensation to prisoners.
Let us not beat around the bush in political attack and defence. While Conservative members of the House come under attack for giving prisoners the vote, they point across the dispatch box towards the Labour members who “Didn’t do anything about it”. As a party, Labour must admit, that despite the endless consultations, proposals, meetings and talking shops about how it could be done, delaying tactics were most definitely employed. However, while the Coalition may be justified in saying Labour didn’t do it for 5 years, they cannot run away (and yes, Nick Clegg did try) from the fact that they have to do it now.
The UK is signed up to the European Convention of Human Rights and so we are bound by the decision of its Court. The problem is most people in the country don’t want to be forced to give convicted criminals suffrage, a right many see as one of the ones a person forgoes if they commit a crime, in the same way as freedom is limited. Furthermore, the politicians obviously don’t want to be forced to lift the ban on prisoner voting, but are being forced to debate, discuss and plan doing it in Parliament.
Parliament, the symbol of our democracy, the stalwart figure of representation of the people in the UK, the place where our MP’s debate our laws, the source of our government, is being forced to enact a law, pertaining to our democracy, within the bounds of our borders, which it doesn’t want to.
I may be wrong, but the situation strikes me as just slightly odd….
It is easily understandable that in signing up to the ECHR, just as in signing up to the EU, the United Kingdom succeeded some of its own sovereignty and gave it over to a collective obligation together with other countries to observe a pre agreed set of rules. However, I fail to understand why the Court, which normally takes a hesitant attitude to meddling in the largely internal affairs of countries, has found itself obliged to protect the rights of the prisoner from a long standing and generally agreed national law.
What is more, the reasoning of the court seems to be extremely weak. The Convention requires High Contracting parties to hold free and fair elections, and this is the provision which the court has used in overturning the UK’s ban on prisoner voting. It reasons that elections in the UK are not free and fair as long as there is still a blanket ban on a particular section of society. The fact that this section of society is the criminal outcast group seems not to factor into the court’s decision.
However, regardless of my objections it is happening. The perturbing thing is the government could make this change much quieter, with much less aggravation, and with less jubilation from a certain Champagne drinking prisoner, but did not.
As I have already said above, other countries, in and out of the ECHR, have similar restrictions. In Canada all who are sentenced to two years or over are barred from voting. In the US voting rights vary with elections and states, but generally convicts are barred. In countries such as Australia, Spain, France, and Greece there are voting restrictions such as a ban for “lifers” and judges in a sentencing court having the choice to remove suffrage with others.
It would be a simple provision to install this last method (similar to that of France). It simply changed the blanket ban to giving judges the right to include revoking the vote in the sentence for those who serve over a set number of years, or including revocation of the vote in the lawful punishment of crimes.
The other issue which has been raised is that of “mass voting” of prisoners. Rightly, it is a considerable worry of canvassing, campaigning, courting the prisoner vote etc, and of a prison population, because of its confined nature, voting similarly. The salve to this problem is another victory for comparative law. Countries such as Ireland, Norway, Denmark, Sweden and Israel have no barring of votes for prisoners. In Ireland the Electoral (amendment) Act 2006 gives prisoners the right to a postal vote. Previously, prisoners had always had the right to vote, but not the right to access to a ballot box or postal vote, therefore could only vote if they were on temporary release and in the electoral division they would normally vote in if not imprisoned. The 2006 Act provided that prisoners must register for a postal vote, which will be counted in their home constituency, if they want to vote.
In conclusion, it is clear to see that the case in the Strasbourg Court is far from a stable judgement. The UK’s sovereignty has been so infringed that it seems internal regulations on prisoners and voting has been taken out of Parliament’s hands. However, the options I have stated above are simple and reasonable steps to make, and would be successful in keeping the vote out of the hands of criminals, especially those who have killed, or grievously harmed another member of society.