Votes for prisoners: Still a reform too far?

Yet those searching for tests of the coalition’s internal cohesion might be advised to look further afield than Liverpool and Birmingham this autumn – starting this week in Strasbourg.  At its 1092nd meeting on Human Rights, scheduled for 14 and 15 September, the Council of Europe’s Committee of Ministers will consider how to respond to the UK’s continued denial of voting rights to prisoners. If ever there was a question likely to divide Liberal Democrat and Conservative opinion, it is surely this one.

Prison Cells (Credit; Miss Millions, CC by 2.0)

Perhaps unsurprisingly, the coalition’s programme for government remains silent on the issue of voting rights for prisoners. In Parliament, meanwhile, government ministers have responded to written questions on the issue in a highly consistent, but tight-lipped fashion. On 9 June 2010 Lord McNally, the Liberal Democrat Minister of State for Justice announced: ‘the Government are considering afresh the best way forward on the issue of prisoner voting rights’.

On 13 July Mark Harper, Conservative Minister for Political and Constitutional Reform informed the Commons that: ‘The Government are considering afresh the best way forward on the issue of prisoner voting rights more generally.’ The following day, Harper reiterated the exact same line, telling MPs: ‘The Government are considering afresh the issue of prisoner voting rights’.

That the government could not be a little more forthcoming in mid-July seems a little curious. Following Labour’s failure to address prisoner voting rights in time for the May 2010 general election, the Committee of Ministers issued the UK an ultimatum on 1 June, ordering it to amend national legislation or face repercussions such as suspension or expulsion from the Council.

The UK was given until 30 June to submit evidence to the Committee on its plans to address prisoner voting rights in time for the 2011 local and devolved elections. This week the Committee will review the submission – assuming there is one – and decide what action to take.

So, why the urgency? Despite repeated calls, the UK has failed to take any active steps since the European Court of Human Rights’ ruled in Hirst v UK (2005) that the UK must remove its blanket ban on votes for prisoners. The Court adjudged UK electoral law to be in breach of Article 3, Protocol 1 (right to fair and free elections) of the European Convention on Human Rights.

In view of the UK government’s failure to execute the Court’s judgment, the Committee of Ministers adopted an interim resolution in December 2009 expressing ‘serious concern’ that continued delay would result in the 2010 General Election being held in contravention of the ECHR.  The Committee reiterated its concerns in March 2010, before inviting the UK to submit information ahead of the September meetings.

That the UK has delayed in implementing the judgment reflects the highly divisive nature of the issue of prisoner voting rights in UK domestic politics. Campaign organisations, including Democratic Audit, have highlighted human rights concerns about the disenfranchisement of UK prisoners over several decades. Yet, successive UK governments have taken the view that individuals convicted of serious crimes lack the moral authority to vote. In the run-up to the 2005 general election, the Liberal Democrats favoured extending the right to vote to convicted prisoners – prompting accusations from both Labour and the Conservatives that the party was ‘soft on crime’. Media reports, particularly in the tabloid press, are likely to have hardened the stance of many politicians who oppose extending the franchise to prisoners. Yet, the fact remains that the UK is in breach of international human rights law – and is therefore required to respond.

In an attempt to identify a compromise, the 2005-10 Labour government undertook two consultation exercises, but failed to take any decisive action. Following its initial consultation, the Ministry of Justice proposed in 2009 that prisoners’ right to vote should be determined on the basis of their sentence. Under these proposals, prisoners sentenced to a period of less than two years would automatically retain the right to vote (subject to certain exceptions based on the type of offence), while prisoners sentenced to more than two but less than four years could apply to the court for an entitlement to vote.

As the graph below illustrates, this reform would still have resulted in over half of the prison population remaining disenfranchised – a far higher proportion than are denied the vote in other European countries operating a partial ban, including Italy, France and Germany. Yet, Labour did not even bring forward legislation to take this limited step. Meanwhile, an attempt in the Lords in 2010 to introduce votes for prisoners via an amendment to the Constitutional Reform and Governance Bill failed after the amendment was withdrawn.

As well as imposing a deadline on the coalition for a formal response, the Council of Ministers expressed the hope at its 1 June meeting that a change in government would prompt a change in attitude. We will learn over the next few days whether there is any evidence of such a shift. If, as seems more likely, the differences between the two governing parties are serving to further delay action by the UK government, the Council of Ministers’ apparent goodwill towards the coalition is unlikely to last.

The Committee of Ministers must uphold the authority of the ECHR and bring states to account for failing to execute judgments made by the Court. In 2009, the UK violated the European Convention 14 times, and has been found to have a high proportion of ‘leading cases’ outstanding for more than five years – Hirst v UK among them. With the Committee’s Protocol 14 powers, acquired in early 2010, now allowing it to take action against persistent breaches, the coalition cannot continue simply to asset that it is ‘considering the issue afresh’. In this instance, the governing parties cannot agree to disagree. A decision will have to be made; the Committee of Ministers is waiting.