Martin Partington: Spotlight on the Justice System

A topic which has excited considerable debate, both in and out of Parliament, is whether prisoners should have voting rights.

Current law in the UK is that those in jail don’t vote.

The issue has been raised in the European Court of Human Rights in a number of different cases. Article 3 of the First Protocol of the Europen Convention on Human Rights gives the right to free and fair elections.

In 2005, the Grand Chamber of the European Court of Human Rights (ECtHR) found in Hirst v UK (No 2) that the UK’s blanket ban on serving prisoners voting was in contravention of this provision in the Convention.

The Greens and MT v UK judgment, which became final on 11 April 2011, set a deadline of six months for the UK to bring forward legislative proposals to end the blanket ban, i.e. 11 October 2011.

However, action was further delayed because another case, this time from Italy, was to be decided by the Court. On 30 August 2011, the original deadline was extended to six months after judgment delivery in the case of Scoppola no. 3. The delivery of Scoppola No. 3, became final on 22 May 2012. Thus the six month period referred to in Greens and M.T. began to run on 22 May 2012. It expired on 22 November 2012.

The UK Government has actually argued quite successfully that the opposite to a blanket ban should not be all prisoners getting the vote. Indeed in Scoppola it was acknowledged that the UK argument, that there should be a considerable ‘margin of appreciation’ in implementation, was accepted.

The Court found that under Italian law only prisoners convicted of certain offences against the State or the judicial system, or sentenced to at least three years’ imprisonment, lost the right to vote. There was, therefore, no general, automatic, indiscriminate measure of the kind that led the Court to find a violation of Article 3 in the case of the UK. The restrictions imposed under Italian Law were not in controvention of the Human Rights Convention.

With this flexibility in mind, the Government has published a draft bill offering three options:

• no change to the law – i.e. retention of the blanket ban;
• ban for those sentenced to more than 6 months; or
• ban for those sentenced to more than four years.

In parliament itself, strong arguments have been heard that the UK Government should make its own mind up on these matters and that to allow prisoners vote would make some MPs ‘sick. Equally strong arguments have been heard that, actually, the Convention right guaranteeing the right to vote and the Court’s judgement that there can be much flexibility in how this right is protected is a sensible compromise.

Given recent Government statements about the importance of sentencing leading to rehabilitation and preventing recidivism, it seems to me surprising that the argument for keeping the current blanket ban is not really that strong. But I accept that, for some, this is a very controversial viewpoint. What do you think?

To read the Government proposals go to http://www.justice.gov.uk/news/features/prisoner-voting-rights.
The draft Bill is to be subject to review by a Joint Committee of MPs in the Commons and the House of Lords. It will report in 2013.