“Democracy values everyone equally even if the majority does not”… unless you happen to be a prisoner in the UK that is….
In this article, I argue that there is an urgent need for a more rational approach to the debate about prisoners’ rights to vote – which has become an emotive issue in the United Kingdom. This is particularly so in light of the recent response from the United Kingdom government to ECtHR rulings, demonstrating an unparalleled defiance towards Strasbourg rulings. Due to this, the implications of the debate over prisoners’ voting rights extend beyond individuals, bringing into sharp focus a matter of broader significance to us all, namely the United Kingdom’s approach to democracy and human rights and its relationship with the European Court and the EU itself.
Unlike prisoners serving sentences in the UK, Oscar Pistorius will retain his right to vote during his incarceration. South Africa recognises that: “the universality of franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts”. By contrast, David Cameron has stated: “It makes me physically ill even to contemplate having to give the vote to anyone who is in prison” and has assured the electorate that inmates will not be given the right to vote during his administration. This is despite successive Strasbourg rulings which state that the UK’s blanket ban is unlawful. The UK government’s stance is a flagrant irony: Breaking the law justifies revocation of the right to vote, so much so, that we will break the law to do it.
The blanket ban on any prisoner having voting rights in the UK means that those serving short sentences for relatively minor matters (such as theft offences) are denied the right to vote, alongside convicted murderers serving life sentences. In this regard, the UK is in the company of Russia, Bulgaria and Georgia – countries with which it has little else in common, politically or socially. By contrast, in at least 18 European countries, there is no restriction whatsoever on prisoners’ voting rights, whilst others adopt partial limitations. For example, in Germany, only those convicted of crimes that threaten democracy or the integrity of the state (such as terrorism offences) are prohibited from voting. This ban at least has a principled basis – those who attack the democratic order will be disentitled from participating in it. In what follows, I explore how we got to where we are and why it matters.
The right to vote is protected at an international level and European level by the UN Declaration of Human Rights (which states that elections “shall be by universal equal suffrage”), the ICCPR (which states expressly that “Every citizen shall have the right and opportunity… without unreasonable restrictions…to vote”) and under Article 3 of Protocol 1 ECHR (which requires signatory states to ensure “the free expression of the people in the choice of the legislature”).
ECtHR jurisprudence does not require contracting states to guarantee all prisoners the right to vote. States are given a wide margin of appreciation to determine which prisoners are entitled to vote and which are not. However, the ECtHR has ruled that a blanket ban, one which is “automatic and indiscriminate” is unlawful (Hirst (No.2) v UK). In Frodl v Austria, the ECtHR stated: “Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings”
However, in Scoppola (No.3) v Italy, the ECtHR stated that Frodl had not set down a requirement that in every case a judge must have individually considered and ruled on each prisoner’s right to vote. It was stated that: “the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction.” (emphasis added). This case demonstrates the breadth of the margin of appreciation afforded by the ECtHR on this issue. The Grand Chamber overturned the decision made below (by the simple Chamber) by holding that the ban imposed by Italy was lawful. This was despite the legislation having the effect of automatically depriving the applicant from ever being able to vote, even after his release from prison. In order to be eligible to vote upon his release, he had to apply to have the ban lifted and this was only possible after having been released for at least three years.
Immediately following the ECtHR decision in Hirst, there was a flurry of activity at the domestic level to comply with (or at least consider compliance with) the decision. Between 2006 and 2009, there were various consultations and proposals for amending UK law. Peculiarly, some of them put forward as a consultation proposal the retention of the existing regime. In the 16th report by the House of Lords and House of Commons Joint Committee on Human Rights (2006/07), the Committee criticised the Government’s failure to act more swiftly in amending the law and stated: “It is also a matter of regret that the Government should seek views on retaining the current blanket ban, thereby raising expectations that this could be achieved, when in fact, this is the one option explicitly ruled out by the European Court.”. In its 31st report of 2007/08, the Committee noted the Government’s continued reluctance to amend the legislation and stated that it tarnished the UK’s otherwise good record of responding to the judgments of the ECtHR.
Despite this, by 2010, the UK still had not amended the law and in March 2010, the Committee of Ministers issued a warning to the UK Government to comply. In December 2010, the Government announced that it would bring forward legislation to allow offenders sentenced to fewer than four years’ imprisonment the right to vote unless the sentencing judge specifically considered it inappropriate on a case by case basis. Following a House of Commons debate in February 2011, the motion in support of continuing the total ban was passed by 234 votes to 22. As such, in March 2011, the Government referred the ruling in Green and MT (the most recent case on the issue at the time) to the Grand Chamber of the ECtHR, effectively seeking an appeal of the decision.
In April 2011, the ECtHR refused the request and gave the UK a 6-month deadline to propose legislation which complied with European law. This deadline was subsequently extended following cases such as Scoppola (No.3). In November 2012, the Government published a draft Bill for pre-legislative scrutiny by a special committee, which, in December 2013, recommended that all prisoners serving 12 months or fewer should have the right to vote. The Government did not bring forward a bill with the 2014 Queen’s Speech.
Meanwhile, the UK Supreme Court handed down its judgment in the conjoined cases of Chester and McGeogh in October 2013. The Court was widely reported in the popular press as having defied the rulings of the ECtHR in dismissing the applicants’ appeals. It is true that the appeals were dismissed, but not because the Court departed from ECtHR jurisprudence. Indeed the Supreme Court rejected the Attorney General’s invitation to decline to apply the principles elucidated in Hirst (No.2) and Scoppola (No.3). It was argued that under national legislation (s.2(1) HRA 1998) courts are only required to “take into account” judgments of the ECtHR when determining cases involving Convention rights, such that the Court could decline to apply the principles. The Supreme Court rejected this submission and endorsed the principles in Hirst (No.2) and Scoppola (No.3). However, it declined to make declarations of incompatibility on the basis that such a remedy is discretionary and that such a declaration had already been made in an earlier case. The majority also held that in respect to one of the applicants (Chester): “…it can, I consider, now be said with considerable confidence that the ban on Chester’s voting is one which the United Kingdom Parliament can, consistently with the Convention rights, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote.”
Why it matters
There are some very significant problems posed by a blanket ban on prisoners voting. For example, the policy leads to arbitrary deprivation: A prisoner serving a 3-month sentence for a theft offence might miss a general election purely because it falls at a time when they are inside, whilst their fellow inmate serving 3 years for a violent offence may miss one general election as well. The loss of right is the same, yet the gravity of their respective offences is not. Similarly, custody thresholds vary across regions and with public policy mandates. Accordingly, the same offence may one day attract a custodial sentence, but the same offence committed weeks later, in a different region might attract a non-custodial one.
Further, the rationale of the ban has never been clearly explained. Is it intended to be further punishment? If so, why deny imprisoned citizens that specific right? Prisoners enjoy free healthcare, the right to receive visitors, to participate in training and education courses and many other benefits. Why should they have these benefits but not a right to vote? Lady Hale in Chester & McGeoch put it well in stating: “Is it simply an additional punishment, a further mark of society’s disapproval…Or is it rather to encourage a sense of civic responsibility and respect for democratic institutions? If so, it could well be argued that this is more likely to be achieved by retaining the vote, as a badge of continuing citizenship, to encourage civic responsibility and reintegration into society in due course.” The argument in favour of reintegration is supported by the Prison Reform Committee, various MPs and The Catholic Bishops of England and Wales.
There are also a number of risks faced by the stance adopted by the UK, independently of individuals’ rights. Firstly, Parliament’s failure to amend the law so as to comply with Convention requirements sets a dangerous precedent and weakens the reputation of the UK for compliance with human rights more generally.
Secondly, there are many thousands of prisoners’ claims coming through the domestic courts in the UK and going up to the ECtHR on this issue. Over one thousand applications before the ECtHR were stayed pending the outcome of the proposals to amend UK legislation, but those are now continuing because the UK has failed to meet successive deadlines. This places an enormous burden on the domestic and ECtHR court system (entailing significant public resources and funding) on an issue which has already been deemed unlawful at a macro level.
Thirdly, it leaves the Government open to compensation claims which could run to tens of millions of pounds if the ECtHR started awarding damages in such cases. To date, the ECtHR has held that a declaration of breach constitutes just satisfaction. For example in Firth and Others v UK, handed down on 12 August 2014, the ECtHR upheld all ten applicants’ claims, but declined to award damages, or even costs, on the basis that a declaration was just satisfaction and that “… the lodging of such an application was straightforward and did not require legal assistance”, such that costs should not be awarded.
There is no guarantee that different cases will not be decided differently in the future. The judgment in Firth shows that far from the ECtHR “flexing its muscles”, it is in fact taking a very dispassionate conciliatory approach. Similarly, with respect to the very wide margin of appreciation afforded on this issue, the ECtHR can hardly be described as interventionist. In short, the anti-Europe lobby being fed horror stories by certain factions of the popular press cannot legitimately use this as an example of ‘overreaching’.
The most alarming consequence of the stance taken by the UK is the risk of withdrawing from the ECHR and, potentially, the EU. In early October 2014, the Conservatives announced their plans for reforming human rights law, including a proposal that judgments of the ECtHR will be “advisory” only and that the Ministerial Code will be amended so that ministers they are not bound by international law. The proposal is not to actually withdraw from the ECHR altogether, but negotiate new terms – ones which will clearly not be accepted, so that the proposal could lead to a situation where the UK is forced to withdraw from the ECHR altogether. This will be damaging to the UK’s international reputation and is likely to cause real difficulties in terms of remaining in the EU. The uncertainty of this is unfathomable and the implications are likely to be as significant economically as they are socially.
The importance of the prisoners’ right to vote debate goes beyond the rights of the individual and challenges United Kingdom’s society on even wider issues. The issue deserves a mature debate, rather than a response driven purely by emotion. Any restriction on the right must be underpinned by a logical rationale that maintains a broad, reasoned approach to democracy and human rights.
 Ghaidan v Godin-Mondoza  2 AC 557 para 132
 Constitutional Court Judge Albie Sachs in August and Another v Electoral Commission and Others.
 Prime Minister’s Questions on 3 November 2010.