Saturday, 4 November 2017

Voting for Prisoners - latest in the long-running saga



The Lord Chancellor and Secretary of State for Justice (David Lidington MP) was appointed after the June General Election (post 12th June).  One of the long-standing issues he inherited was that of whether prisoners (or some prisoners) should be allowed to vote.  The present ban is in the Representation of the People Act 1983 section 3 (as amended):

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election."

So far
the British government has refused to amend this legislation to allow any prisoners a vote and the government has acted in defiance of the European Court of Human Rights judgment in Hirst v United Kingdom No.2 decided by the Grand Chamber in 2005.  The court held twelve votes to five that there has been a violation of Article 3 of Protocol No. 1 (Right to free elections).

According to the court, the problem with the UK's position is the "general, automatic and indiscriminate disenfranchisement of prisoners."  This view was reaffirmed (16 to 1) by the court in Scoppola v. Italy (no. 3) and see the judgment where the court also stated that each State has a wide discretion as to how it regulates the ban - both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law.

On 2nd November, Mr Lidington made this statement to Parliament on Sentencing.  He said - "In December 2016, the Government gave a formal and public commitment to the Committee of Ministers of the Council of Europe, the body representing the national governments of its members, that we would - in time for their meeting next month - provide proposals to address the Hirst judgment.  Since then, the Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting."

Further - " ... we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the Hirst judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.  Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot."

I have no idea how this will be viewed in the Council of Europe but it ought to be seen as a derisory and minimalistic response to the Hirst judgment.  It utterly fails to address the real concerns of the Hirst judgment and can hardly be seen as avoiding the fact that the UK is in breach of its international obligations under the European Convention on Human Rights.

According to Mr Lidington the change to temporary licence arrangements will affect affect up to one hundred offenders at any one time and none of them will be able to vote from prison.  This measure will require no changes to the Representation of the People Act 1983, but instead would entail a change to Prison Service guidance.

Further on this see Barrister Blogger who sees the new guidance as a Cowardly gesture.  He concludes with this paragraph with which I respectfully agree:

"It is perfectly true that amongst the human rights issues of our time, the ban on British prisoners voting in elections is some way off being the most important. There are perfectly reasonable arguments either way. The judgment in Hirst is certainly not beyond criticism (see in particular per Lord Sumption in Chester and McGeoch [2013] UKSC 63) But whatever your views on that issue, or even on Britain’s membership of the Convention itself, ridiculous ruses like Mr Lidington’s do not help at all. Once again, where our political leaders should be offering leadership we see only pusillanimity, cowardice and a flinching away from any confrontation with popular opinion. This is particularly regrettable coming from a Lord Chancellor. Having agreed to accept the rulings of the ECtHR, this country should not feel able flagrantly to ignore its rulings, and to do so more or less indefinitely. It is the clearest breach of international law, it demonstrates that Britain cannot be trusted to keep its word, and it undermines any chance that the ECtHR has of protecting human rights in countries like Russia or Turkey where the remnant of the rule of law is sometimes the only hope for those facing arbitrary detention, unfair trials and perhaps even the gallows."

Lord Sumption's criticism of the position reached by the European Court of Human Rights is at para 127 onwards of the judgment in Chester.

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