Home > Election > A change – after much foot dragging

A change – after much foot dragging

Some prisoners are finally to get the right to vote. The only part of this that worries me is that the government are only agreeing to make the change reluctantly. David Cameron is said to be “exasperated and furious” at being forced to extend the right to vote. This highlights a shameful episode in which the government has, for a number of years, done everything possible to avoid protecting this aspect of the right to vote as required under the European Convention.

At present the blanket ban on all prisoners voting makes no distinction as to the seriousness of the offence or whether the punitive part of the sentence has been served. Two people may be convicted of the same offence, but one person may be sent to prison (and lose the right to vote) and the other may not (and not lose that right). The choice of punishment may reflect various factors and does not necessarily  indicate whether the loss of the political right is appropriate.

The impetus for reform is not just from the European Court of Human Rights in Hirst. The Scottish court in Smith v Scott found that the law violated fundamental rights and issued a declaration of incompatibility under s.4 of the Human Rights Act. While a declaration will normally prompt a change in the law, in this case it did not – which is unsurprising given that prisoners’ rights is a politically unpopular cause.

The British system for protecting fundamental rights relies on the political branches taking responsibility (and not simply leaving these matters to the courts), and this means sometimes making unpopular decisions. For this reason, I hope the Opposition does not seek to score cheap political points from this issue.

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Categories: Election
  1. Gammidgy
    November 8, 2010 at 10:01 pm

    I’d like to know your thoughts on the Heresiarch’s blog post – http://heresycorner.blogspot.com/2010/11/votes-for-prisoners-possible-loophole.html

    Might such a loophole be exploited? Is David Cameron a secret liberal, as David Allen Green appears to suggest?

    Buggered if I know.

    • November 9, 2010 at 10:07 am

      Thanks for the link. While the terms of the ECHR do not spell out a right to vote held by individuals, that right has been implied by the court in earlier decisions – see the decision in Mathieu-Mohin. The Court gives signatory states some leeway in deciding how that right applies, for example through residency requirements. This does not mean states can withdraw the right to vote for whatever reason it wishes. The question is whether a restriction on the right to vote serves a legitmate aim and is proportionate. The Court in Hirst found that the blanket ban on prisoners voting was a violation. However, it is right that some parts of the decision are ambiguous. While the Court makes clear the problems in using a prison sentence to decide whether people lose certain citizenship rights, it also refers to the problems of process (ie the lack of a parliamentary debate). That suggests that if Parliament had debated the issue fully and concluded that prisoners should lose the right, then Hirst’s claim may have been weaker.
      Does this mean that Parliament could get away with simply re-enacting the ban? No. The Court emphasised the problems of a blanket ban for all prisoners. I think this objection would remain even if Parliament applied its mind to the questions. This also seems to be confirmed in the subsequent decision in Frodl v Austria, which does not emphasise the procedural aspects.

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