Just before Christmas we covered the government’s plans to give the vote to prisoners serving sentences of less than four years, a delayed response to the adverse court ruling on the current rules from 2005 which the Labour government had not yet properly responded to.
Unsurprisingly, the plans have triggered opposition in some parts of the Conservative Party, including from Paul Goodman over on ConservativeHome: “The essence of the Clegg/Harper case is that the Government has no alternative. However, there at least four”.
Carl Gardner on his Head of Legal blog explains the legal background in more detail:
Obviously this will finally discharge the government’s clear obligation to change the law to comply with the judgment in Hirst v UK, in which the European Court of Human Rights ruled that our current law, which disenfranchises all convicted prisoners, breaches Article 3 of Protocol 1 to the European Convention on Human Rights. That obligation became all the more pressing following the Court’s very recent “pilot judgment” in Greens & MT v UK ordering the UK to bring forward legislation to comply with Hirst within six months. Britain will be out of the dock, and not at risk of the embarassment of being the first state to face new “infraction proceedings” in Strasbourg.
The difficulty the government faced was how far to go. On the one hand, some people urged a “minimalist” approach to implementing Hirst, allowing a small number of less serious offenders to vote so as merely to remove the “blanket” ban on prisoners voting which was the heart of the trouble. On the other hand, the post-Hirst case of Frodl v Austria seemed clearly to threaten that any solution would be unsatisfactory unless it gave the vote to the great majority of prisoners, with only a judge able to take it away in rare individual cases involving, for example, election fraud. That was a judgment I criticised severely in an earlier post.
But the ECtHR seems to have realised it might have gone too far. At least, in Greens (see paras. 112-114) it seemed to step back a bit from Frodl and make clear the government had a range of policy options, while of course pointing out that it’s likely to have to scrutinise whatever is chosen in due course.
Over on the Labour blog Musings of a Radical, Daniel wrote:
The main objection those on the right-wing appear to have, as far as I can tell, is that ‘people in prison are being punished for a crime’ and therefore they forfeit some of their fundamental human rights.
To an extent, I think, we accept that this is true. It would be crazy to ban prisons because they represent a removal of liberty- they are necessary in order to deter criminals, protect society and ultimately to provide a safe space to reform vulnerable people.
However, think seriously about how much of a deterrent losing the vote would be, to anyone that isn’t a seasoned and enthusiastic politico?
Can you really imagine some ruffian not being put off by the prospect of long years kept away in lonely and terrifying confinement, yet quaking in their shoplifted boots at the idea of not being able to cast their vote?
And on Heresy Corner this point was made:
The second measure announced … was that judges will have a discretion to impose a voting ban on any convict serving a sentence of less than four years. Superficially this looks rather clever. It will, though, inevitably lead to further anomalies. What guidance will judges have on the appropriateness of this additional penalty, and what grounds will there be to appeal against it? What is to stop some judges imposing a vote-ban on almost every prisoner who comes before them, and others never imposing it at all?
Unless there are very strict guidelines, under these new rules two prisoners, sentenced to the same jail term for very similar offences, may find themselves on opposite sides of the franchise divide. On the other hand, if the guidelines are restrictive enough to frustrate the exercise of judicial discretion – in other words, if the voting ban comes to be imposed semi-automatically on certain categories of offender – then we are back with the arbitrariness that the ECHR finds so objectionable.
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7 Comments
As I understand current legislation, everyone over the age of eighteen years can vote except Lords, lunatics and prisoners. (Please no comments necessary – I believe those are the terms in the legislation). It must be an administrative burden to check, so why not simply remove the specific exclusions. It would probably save money.
I doubt that many prisoners care whether they vote or not, but I’d like more of them to care. I don’t think it would do any harm if they could vote – and stands a reasonable chance of doing some good. For example, simply by having to consider how to vote and the factors to include may stimulate positive thought processes not previously experienced.
A further thought: should prisoners vote in the prison’s constituency? I think it might be a good idea if candidates in some constituencies canvassed in prisons – and represented the prison population in their constituency in parliament. MPs visiting prisons from time to time can only be a good thing. Against this idea is the practical problem of prisoner transfers – though on what scale this occurs, I’m not really sure.
Utter madness, just the sort of thing which brings the HRA into disrepute.
If people don’t want to lose the right to vote while they are in prison they have one very simple way to achieve this – don’t commit the crimes that get them sent there.
The voting rights for prioners serving terms less than 4 years,with conditions set by judges,is a reform that has been forced on the `Coalition Government by dint of the case law in the EHRC.
I ask that closer attention be made to the fact that UK prisoner numbers has now spiralled into the highest levels of inmates in the EU .
Further,since the timely prison visits made by Elizabeth Fry, who launched the first recognition landmark for prisoners` human rights in the late 18thC. little has been seen to be done of any sustainable social value,to either individual or community, to reduce re-offending rates.
There also has been an escalating civil cost caused by the increase in criminal behaviour that is being paid for by law abiding citizens?
Voting rights for prisoners is cosmetic ,when compared to the real social issue,namely, the 1 in 2 reoffending rates for all prisoners on release post 6 month sentences.
The overcrowded 80,000 people interrred in Britain`s unreconstructed prisons does not assist in a badly required improvement to the re-education and training programmes to help prisoners.
Young offenders require greater help to make a fresh crime-free start on re-entry into the local community.
That would be the judiciary. There is a very well-established system of jurisprudence, analysis, re-examination, and appeal that has been designed over millenia to solve exactly this problem, and giving the problem to this system was exactly the right thing to do. The problem will now be solved in excruciating detail. (It will take some time and be incredibly boring, but it will be definitively solved)
The starting point is the leading authority Hirst v UK (No2), by this I mean in terms of case law. Because the UK has signed up to the European Convention on Human Rights, the UK is bound by the Convention and under the Convention the European Court of Human Rights decisions are binding on the UK. I was allowed to take my case to Strasbourg because the UK signed up to the individual petition. This means that it is a case of the Individual v the State. The State is the Executive, Parliament and the Judiciary, and not the public.
In Strasbourg the UK was represented by the Foreign and Commonwealth Office, and I was represented by my solicitor Elkan Abrahamson and my barrister Flo Krause. I did not go to the original Chamber hearing (judgment 30 March 2004) because I was still in prison at the time, however, I did go to the Grand Chamber hearing (judgment 6 October 2005) when the UK appealed and Channel 4 News paid for my flight and hotel.
One of the arguments advanced by the UK was that giving convicted prisoners the vote might offend public opinion. The Grand Chamber ruled that there is no “place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”.
So not only is the public not part of the State, in this case the State is not being allowed to hide behind public opinion. For me it is like Groundhog Day all over again every time I hear or read some politician or commentator stating that giving convicted prisoners the vote will offend public opinion. Is it too much to ask that can we now leave public opinion out of this case? Furthermore, my case was decided under European law and not English law and as such the legal principle of Actio Popularis applies. What this principle means is that not only does it protect vunerable groups within society from State abuse, but it also protects them from victimisation by wider society.
What appears to be escaping everybody’s attention with Hirst v UK (No2), the Individual v the State, is that within the State (the UK) are the three arms of the State; the Executive (government), Parliament (the legislature) and the Judiciary (judges and the courts). Therefore it is incorrect for people to keep referring to only the government being bound by my case. As uncomfortable as this may be for some to digest, in effect, a serving prisoner has taken the three arms of the State hostage. They will only be released when the ransom is paid.
Not to put too fine a point on this, the UK went into battle and lost. The UK, the three arms of the State, are prisoners of law. The losers do not dictate the terms of surrender. I recall the then Secretary of State for Constitutional Affairs, and Lord Chancellor, Charles Falconer, telling listeners on the World at One what my judgment did not say, when he had not read it to see what it did say! He assured everybody that in future not all convicted prisoners would get the vote. Jonathan Aitken said in the Daily Telegraph that he had given a dangerous hostage to fortune by expressing this opinion. The previous administration had attempted to hold this line. Hirst v UK (No2) states: “It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with…It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention”.
In February, the UK and the coalition will meet its Waterloo in Strasbourg when the CoM lays down the European law which the UK must fully comply with. David Cameron appears to fear the 1922 Committee and a backbench Tory revolt. However, I suggest that William Hague (FCO) , Kenneth Clarke (MoJ) , Dominic Grieve (AG) and Constitutional Reform Minister Mark Harper should be quaking in their boots. The UK is supreme only in the UK. In Europe the UK is only 1/47th of the Council of Europe, and 1/27th of the European Union. Following the Lisbon Treaty both these institutions combined to make human rights higer law, Supremacy of Parliament is only supreme in the UK and not in Europe. Recently, the United Nations joined forces with the Council of Europe to tackle human rights abuse. The UN developed the Interlaken process to sanction rogue or pariah states. The Council of Europe then adopted the Interlaken process. In February 2010, Baroness Scotland, the then Attorney General, signed up the UK to the Interlaken Declaration. It is binding on the UK. It is this which is the ticking time bomb about to blow up in the coalitions face.
As Basil Brush used to say “Boom, boom”.
My reaction to plans to give some prisoners the right to vote, is that it is a step in the right direction but it does not go far enough. This is not a case of all or nothing, rather it is a case of all or else. I would suggest that now is the time to get our collective heads out of the sand, and face up to and deal with the problem. Since Hirst v UK (No2) was decided the UK has been in denial. The previous administration appeared to conduct itself in a manner as though the case never happened, or at least not accepting the verdict of guilt. A bit like lets go back to the begining. However, the Council of Europe makes it plain that there is no going back and retrying the case. The only option is going forward. On the plane coming back from Strasbourg the UK legal team informed Simon Israel of Ch4 News that they had not expected to lose the case. I would suggest that this means that the UK did not have a plan B. After over 5 years the UK is only just getting around to making other plans. Unfortunately, these appear to be attempting to use sticking plaster below the water line and rearranging the deck chairs on the Titanic.
Under the last administration a Minister at the MoJ asked Phil Wheatley, the then Director General of the National Offender Management Service, whether he knew anyone who could advise the government on my case. He advised that they approached me for advice. The Minister responded “What would The Sun and Daily Mail say?”. Similarly, Simon Israel asked the present administration at the MoJ why they did not seek my advice and he was informed “He ridicules us on his blog”. Awhile back Gawain Towler, press spokesman for UKIP in Brussels, phoned me up and when I asked him why he replied “I thought I should speak to the man who knows more about this case than anyone else”. I spent between 12-15 planning the case whilst in custody. I am not in the least surprised that the UK has not been able to get around it in 5 years. It is a very simple case. The difficulties arise when anyone attempts to deviate from it, because they then enter a legal minefield.
One of the biggest problems with my case has been the media reporting. In 2006 Kenneth Clarke told the Independent “In these home affairs things I think occasionally it’s the duty of politicians on both sides to turn round to the tabloids and right-wing newspapers and say, ‘You have your facts wrong and you’re whipping up facts which are inaccurate’.”
Hirst v UK (No2) is a 41 page judgment. It cannot be accurately condensed into a 30 second soundbite. Therefore, MPs should refrain from speaking to the media on it as this only stokes up the fire.
Ok, just think about what the general public would want, not what the political parties think is good and proper, and go from there.
If that is not enough, think about the worst crime and that perpetrator acclaiming “I voted for” or “I endorse” it is just queasy thinking about that.
Of course we are all grownups and we know absolutely, that no one will take any notice at all, but think about it, and put the image of a voter filling in their ballot paper and remembering the TV and the guy saying he endorsed…
Then ask yourself would the media stoop so low, would other politicians stoop so low, if the answer is no to both … you are very trusting