The UKs muddled approach to prisoner voting rights looks set to continue

The UK’s continued delay in responding to the issue of prisoner voting has spawned a hydra-headed legal debacle. Whereas countries like Ireland quickly passed legislation to enfranchise prisoners following a 2005 European Court decision, the then Labour Government vacillated, seemingly hoping that if delayed for long enough the problem would go away. It didn’t go away, but it did become somebody else’s problem. Colin Murray looks at the legal ins and outs of the human rights issue that won’t go away.

HM Wormwood Scrubs, (Credit: Wikimedia Commons, CC BY 2.0)

The European Convention of Human Rights provides that states belonging to the Council of Europe must “undertake to hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” In the Hirst v UK case the European Court made clear that the right to vote could not be removed from prisoners simply because they had been convicted of an offence warranting a prison term. To do so would be arbitrary, as prisoners sentenced to a very short term of imprisonment might lose the ability to vote by the pure chance that their incarceration covered an election day, whilst prisoners sentenced to longer terms might suffer no such penalty if their time in prison fell between elections. More importantly, a blanket ban applying to all prisoners (except those on remand or imprisoned for contempt or default, the latter categories being accidents of history rather than well thought out exceptions) could not, be upheld. When people are imprisoned this punishment primarily affects their liberty. An individual does not become a “non-person” simply because she is incarcerated.

The Court recognised in here that the right to vote is a qualified right. Countries across Europe remove it from some classes of prisoner on the basis of the seriousness of their offences (the Netherlands), the nature of the offences (Germany) or on the basis of a judicial ruling (France). But the right to vote is a particularly important interest, underpinning democracy and legitimating the power of parliaments to legislate. As Thomas Hammarberg, Council of Europe Human Rights Commissioner, has asserted:

[D]emocracy was once established through the idea of universal suffrage. Our forefathers accepted the principle that not only male persons, nobles, and those who owned property or paid taxes should have the right to vote, but everyone – irrespective of their status in society. We may now feel that some of these right-holders do not deserve this possibility, but to exclude them is to undermine a crucial dimension of the very concept of democracy – and thereby human rights.

In other words, the right to vote is too important to strip from prisoners simply as a function of the removal of their liberty (especially when there was no substantive debate on the rationale behind this policy in Parliament when the current ban was enacted).

Therefore, in fairness to the UK Government, it did not have to enfranchise all prisoners under the ECHR. In fact, if the UK could articulate a basis for the removal of the right to vote from some (even most) prisoners, the European Court would have been satisfied. Parliament is still trying to do so, with draft legislation currently before a Parliamentary Joint Committee. But whilst the response moves slowly forward, the legal issues surrounding prisoner voting have multiplied in complexity.

For a start, the European Court continues to receive claims from prisoners in the UK (over 3,500 at the last count) and other countries. Then there is the EU dimension to prisoner voting. The EU Charter of Fundamental Rights provides that “every citizen of the Union has the right to vote … at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State”. This right has been relied upon in for European Parliament elections and municipal elections to bring a claim currently under consideration by the UK Supreme Court in the conjoined appeals of McGeoch and Chester.

Thirdly, the Scottish Parliament last week voted on the franchise arrangements for the Independence Referendum in 2014. Whilst Holyrood granted a vote in the referendum to 16 and 17 year olds, in light of the importance of the decision for Scotland’s future, a Lib Dem and Green Party effort to extend the vote to prisoners was overwhelmingly rejected. Unmoved by appeals from the Scottish Human Rights Commission, SNP Deputy First Minister Nicola Sturgeon has maintained that “convicted prisoners who are serving prison sentences do not get to vote, and I do not consider that there is a good argument for changing the position for the referendum”. More evidence that the SNP are happy for many things to stay the same even in an independent Scotland.

However, as Paul Reid identified in March 2013, the legislative competence of the Scottish Parliament is limited. The Scotland Act 1998 denies the Scottish Parliament the ability to pass any law in conflict with the ECHR rights and prisoners are already preparing to bring a legal challengeto the referendum bill on the basis of this clash.

Before it even gets under way, this legal challenge faces a new hurdle. Last Friday, the same day that the Scottish Parliament rejected the proposal to give prisoners the vote, the European Court of Human Rights handed down its decision in the McLean and Cole v UK case Cole’s argument was different from most prisoner voting rights claims in that it focused upon the impact of the ban preventing him from voting in the Alternative Vote Referendum held in 2011 (the Parliamentary Voting System and Constituencies Act 2011 had tied the franchise for that referendum to the general election franchise).

It is not unusual for referenda voting criteria to differ from election criteria across Europe. Ireland, for example, maintains a distinct referendum franchise which restricts the vote to Irish citizens, whereas UK nationals resident in Ireland can vote in ordinary parliamentary elections. Ironically, under the Scottish Independence Referendum (Franchise) Bill, Irish citizens resident in Scotland will get a vote in the forthcoming independence referendum. The decision chimes with the efforts of the Court to be as non-prescriptive as possible in how states respond to the right to vote. Nonetheless, there is something very strange about the idea that the Court considers that the right to vote does not touch local elections, referenda (or even, it would seem from this decision, elections for Presidents in many Council of Europe states).

So at the end of all these legal challenges, we’ll likely be back where we started in October 2005, with the resolution of the issue still resting with Parliament. This muddled approach to voting rights seems here to stay.

Note: This article represents the views of the author, and not Democratic Audit or the LSE. It was originally published on the PSA blog and can be viewed here.

Colin Murray is Senior Lecturer in Law at the University of Newcastle. He discusses this issue in more detail in a recent article in Parliamentary Affairs.