Tuesday, 9 March 2010

Prisoners and voting

In Hirst v United Kingdom (2004) 38 EHRR 40 a Chamber of the European Court of Human Rights ruled that the U.K.'s blanket ban on convicted prisoners voting in elections was in breach of the Convention.  That decision was confirmed by the Grand Chamber in 2006 - Hirst No.2 (2006) 42 EHRR 41.

The Council of Europe has now reminded the U.K. of its obligations to comply with rulings of the court - see The Guardian 9th March.  Progress on this issue has been slow.  The government held a two-stage consultation with the second stage ending on 29th September 2009 - see Ministry of Justice.  Given that a general election is only about 2 months away, it seems unlikely that any change to the Representation of the People Act 1983 will be made by the present Parliament.

Is such disenfranchisement necessary at all given that the right to vote is fundamental to democracy?

Addendum: 10th March - see the views of The Prison Reform Trust.

Addendum 2: 12th March - see The Times "Should Prisoners have the right to vote" - a comprehensive summary of the arguments for and against.  Unfortunately, the article does not look at the arguments relating to any "compromise" solutions.


  1. The ECHR is swallowing a camel and straining at a gnat. Imprisonment is deprivation of liberty, which we all hold dear. The right to vote is less dear to all of us - only half of the population bothers to exercise it. The only anomaly is that lifers on licence are permitted to vote - they ought not to be.

    I also do not understand why the tarriff is referred to as "that part of the sentence relating to retribution and deterrence".

    What he deserves is life imprisonment, or a harsher sentence which is not imposed only because it would diminish us all to do so.

    The point of parole or licence, is to temper justice with mercy, specifically that the criminal is released before he has seved the sentence relating to retribution, and then if, and only if, it is in the interests of wider society.

    This is the man they said ought to have the right to vote: "His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral."

    I am afraid that this ruling will only serve to convince people that they cannot trust the ECHR for good sense. I hope this government and the next stand firm.

  2. Thanks Ben. "The right to vote is less dear to all of us." I agree that many do not vote but that is their personal choice. [I do not think that I would be in favour of compulsion]. The First protocol to the European Convention states - "The High Contracting Parties 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."

    That has been interpreted by the European Court of Human Rights to include a right to vote though it is not an absolute right. Restrictions on the right may exist but they must (a) have a legitimate aim; (b) not involve means which are disproportionate and (c) not thwart the expression of the opinion of the people in the choice of their representatives.

    The UK has a blanket ban in the sense that any serving prisoner (i.e. after conviction for an offence) loses the right to vote. It matters not how serious the offence. There is also an element of chance. If X is convicted and taken to prison the day before the election then he cannot vote. If he is convicted the day after the election then he might well have voted.

    In some modern European countries (e.g. Latvia) various restrictions were imposed on the political activity of former communist supporters of the Soviet Union. The court held that these restrictions were acceptable. The court emphasized that restrictions must not be arbitrary and disproportionate.

    "Arbitrary and disproportionate". Is that not precisely the present UK position? Disenfranchisement may be acceptable for those convicted of very serious offences but if you accept that then you would have to define the division between those who can and those who cannot.

  3. "Universal franchise" is a misnomer. Parhaps similar to but not quite akin to a driving license. It is a privilege not a "right".There is a theoretical argument for the custodial period to be considered progressively and that there should be a minimal period of custody but that opens up the question of sentence, time served etc etc. Quite frankly my opinion is that those who have caused such disturbance to society that they are in custody have forfeited certain of their rights as citizens. Bobby Sands was elected whilst a serving prisoner in N.Ireland. I believe that prisoners forfeit their right to be representatives of any constituency. One could perhaps argue that the right to vote is so enshrined in law it should be compulsory even to vote "none of these". I believe we have too many laws especially since 1997, but that flouting society`s norms to such an extent forfeits many so called "rights" and voting is one of them.

  4. ObiterJ, you have made your own opinion very clear, thank you.

    In answer to your question, no, I do not think the present UK position is either arbitrary or disproportionate. It is saved from being arbitrary because it is a part of the judicial sentence of imprisonment. Neither is it disproportionate: The justification for democracy is that it is the best way of preserving liberty, not the other way around, so if a man deserves to lose his liberty it can hardly be an affront to democracy to deprive him of the franchise for the same period.

    The analogy with Latvia is unapt, to say the least, and I see no useful lessons from it.

    Contrariwise, your other commenter makes a better point regarding Bobby Sands, who was elected by his constituency as a protest. To my mind the right of the free subject to vote for whom he likes is more important than the right of a convicted prisoner to vote.

  5. Yes, in many societies there is a strongly held view that prisoners ought to be disenfranchised. The Hirst v UK case does not rule it out. What was criticised was the UK's blanket approach. The government has consulted regarding various options which are summarised in "Convicted Prisoners and the Franchise."

    Until now I have not actually stated my personal view. The post merely seeks to point out the non-implementation of the Hirst decision and to set out the arguments which the court put forward.

    Actually, I am open to persuasion on this one. I think I tend to favour the 4 year option put forward by the government - "Prisoners who have been sentenced to a period of less than 4 years would automatically retain the right to vote (subject to certain exceptions based on the type of offence for which they have been convicted)."