Commenting on the government’s proposals for all offenders sentenced to four years or more to be automatically barred from registering to vote, Juliet Lyon said:

Enfranchising prisoners serving sentences of under four years is an important step in the right direction.  However, it does not appear to meet the requirements of European Court judgments which state that the vast majority of prisoners should be able to vote.

The government confirmed the new proposals on Friday 17 December 2010. All offenders sentenced to four years or more will automatically be barred from registering to vote. Prisoners sentenced to less than four years will retain the right to vote, unless the sentencing judge removes it. 

Constitutional Reform Minister Mark Harper said:

The government has brought these proposals forward as a result of a court ruling which it is obliged to implement. This is not a choice, it is a legal obligation. We are ensuring the most serious offenders will continue to be barred from voting.

If the government failed to implement this judgement, we would not only be in breach of our international obligations but could be risking taxpayers’ money in paying out compensation claims.

The right to vote will be restricted to Westminster Parliamentary elections and European Parliament elections only. If a prisoner is allowed to keep their right to vote, they would do so either by post or proxy. Prisoners will not be registered at the prison, but at their former address or an area where they have a local connection.

A bar on serving prisoners voting was put in place in 1870. In 2005, the European Court of Human Rights ruled in the case of John Hirst that the existing ban on prisoners being able to vote was contrary to Article 3, Protocol 1 of the European Convention on Human Rights – the right to free and fair elections. 

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Selected press coverage
Prisoners serving less than four years to get vote Andrew Woodcock PA, The Independent, 17 December 2010 Court ruling gives prisoners voting rights Isabel Coles, Reuters, 17 December 2010

Instead of listening to MPs who would rather stick with the punishment of civic death, dating back to the Forfeiture Act of 1870, than comply with the 2005 judgment of the European Court of Human Rights, the coalition government should listen to the advice of experienced prison governors and officials, past and present bishops to prisons and chief inspectors, electoral commissioners, legal and constitutional experts and most other European governments. It is shaming to try and turn something that is both a right and a positive civic duty into something that is tortuous, expensive and tastes like nasty medicine. Things should have never been allowed to reach such a pitch where we risk being in direct breach of our obligations under the European Convention. This is not only bad news for prisoners – it’s an attack upon the Rule of Law that could have much wider consequences.

Editorials in the Guardian and Evening Standard  have expressed their support for overturning the blanket ban, as has David Aaronovitch [subscription] in The Times and Martin Kettle in the Guardian. A range of high profile figures from politics, human rights and justice sector signed a
letter drafted by PRT and published in the Guardian on 11 January supporting government moves to begin to comply with the European Court’s judgment. They included Peter Bottomley MP, Conservative, Worthing West; Robin Corbett, Labour, House of Lords; Kate Green MP, Labour, Stretford and Urmston; Rt Rev James Jones, Bishop of Liverpool; Veronica Linklater, Liberal Democrat, House of Lords; Caroline Lucas MP, Green, Brighton Pavilion; and Eoin McLellan-Murray, President, Prison Governors Association.

As many as 73,000 people were unlawfully denied the right to the vote in the UK general and local elections on 6 May, after the government failed to overturn the blanket ban on sentenced prisoners voting. In March 2004, the European Court of Human Rights (ECtHR) ruled in Hirst v UK (No. 2) that the UK Government’s blanket ban barring sentenced prisoners from voting is unlawful.  Yet, despite the UK government’s appeal being rejected in 2005 and two protracted public consultation exercises, the policy remains in place.

In March the Committee required the UK authorities to “rapidly adopt measures, of even an interim nature, to ensure the execution of the court’s judgment before the forthcoming general election”, a requirement with which the government has clearly failed to comply. As the Crossbench Peer David Pannick QC has said in an article for the Times newspaper (enclosed), the fact that the Government was prepared to go into the election in clear breach of the European Convention is a constitutional disgrace and undermines the legitimacy of the democratic process. We urge the Committee of Ministers to do all in its powers to ensure that the UK Government complies with the Hirst judgment without further delay.

The UK authorities have repeatedly avoided legislative opportunities to act on the judgment of the European Court. The Conservative Party in opposition consistently failed to challenge the ban. Before the election an amendment was tabled by the former Chief Inspector of Prisons, Lord Ramsbotham, to the Constitutional Reform and Governance Bill to enable sentenced prisoners to vote. A transcript of the House of Lords debate is enclosed. The Government failed to support the amendment and it was eventually withdrawn due to the pressures of parliamentary time. In the debate Lord Ramsbotham said: “What message does that attitude to the law send, not just to criminals but to young people who may be tempted to turn to crime?” Baroness Butler-Sloss, the former Lord Justice of Appeal and Deputy Coroner of the Queen’s Household, added: “I hope that whichever party comes into power after 6 May will make this matter a priority. It will be very sad if we continue for years to come to have my noble friend Lord Ramsbotham asking whichever Government are in power to get on with something that has become a disgrace.”

In March the Committee reiterated its “serious concern that a failure to implement the Court’s judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court”. We are aware of a number of sentenced prisoners who have since filed applications to the European Court over the Government’s systemic failure to take the necessary steps to allow them to vote. Lord Pannick estimates that each prisoner could be awarded in the region of £750, and possibly more in the light of the delay in implementing the original ruling. The cost to UK taxpayers of government foot-dragging is likely to be high.

A recent judgment in April by the European Court clarifies the “margin of appreciation” which the UK authorities have in implementing the Court’s ruling. In the case of Frodl v Austria (enclosed) the Court ruled that the 2004 decision makes it unlawful for Austrian law to disenfranchise all prisoners serving a sentence of more than one year in jail. The Court emphasised that a decision to deny a prisoner the vote “should be taken by a judge, taking into account the particular circumstances”. Moreover, “there must be a link between the offence committed and issues relating to elections and democratic institutions”. This means that disenfranchisement may lawfully be imposed only on a small number of prisoners who have been sentenced for electoral fraud or a related offence.

However, the government’s 2nd consultation on prisoners’ voting rights, which ran from 8 April to 29 September 2009, contained no option for overturning the ban completely but only allowed for the enfranchisement of prisoners serving a sentence of up to four years. This would seem to contradict the “margin of appreciation” as outlined in the Frodl judgment. The former Justice Minister, Michael Wills MP, in a letter to the Prison Reform Trust dated 31 March 2010 (correspondence enclosed), said: “The Government believes that those that commit an offence that is serious enough to attract a custodial sentence have broken their contract with society and therefore the loss of the right to vote can be a proper and proportionate punishment in some circumstances. For these reasons, the Government did not propose extending voting rights to all convicted prisoners for the first or for the second stage consultations.”

The systemic failure to implement the ECtHR’s decision reflects a lack of political will manifested in a series of delaying tactics. Successive Justice Ministers have seemed preoccupied with political considerations of this case rather than fairness or the rule of law. The government has yet to publish the results of its 2nd consultation despite the fact the consultation received only 100 responses, and analysis that should have taken the skilled Ministry of Justice and Human Rights team a couple of days had they been authorised to proceed. In correspondence with the Prison Reform Trust and others the Ministry of Justice has repeatedly said it is in the process of considering the responses with no indication of when the results will be published. Repeated reminders to the government to comply with the Convention have been issued by a number of official bodies including the UK Parliament’s Joint Committee on Human Rights, the UN Human Rights Committee, and civic society groups including the Prison Reform Trust, UNLOCK, the association of reformed offenders, Liberty, Penal Reform International and the Aire Centre.

Through its audit procedures the Ministry of Justice has been systematically seeking prisoners’ level of interest in voting and in general is thought to have received positive responses. The Prison Service does not envisage practical problems in enabling sentenced prisoners to vote. The Electoral Commission has set out in its response to the Ministry of Justice’s second consultation on prisoners voting in 2009 a mechanism by which prisoners could be enfranchised though a system of postal or proxy voting, involving a modification to the existing declaration of local connection in electoral law.

The Prison Reform Trust believes the UK government’s current position is morally and legally unsustainable and incompatible with its obligations as a member of the Council of Europe. We ask the Committee to consider now serving the UK government with formal notice of its intention under Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms that it will refer to the Court the question of whether the government has failed to fulfil its obligation. We ask the Committee to consider waiving the six month notice period given that the UK authorities have had over six years to comply with the Convention. We understand that under Protocol 14 Rule 11 Infringement Proceedings can now begin.

Observer front page article 30 May 2010

The government has said it will look “afresh” at how to comply with a European judgment on giving prisoners the vote.

On 10 June, justice minister Lord McNally told peers at question time: “The government is considering afresh the best way forward on the issue of prisoner voting rights.”

The decision to review the ban follows the meeting of the Committee of Ministers in June at which it, “expressed confidence that the new United Kingdom government will adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court.” It determined to resume consideration of the case at its next meeting in September 2010, “in light of a draft interim resolution to be prepared by the Secretariat if necessary”.

Lord McNally said the government would “fully update” the European Council of its views in September.  He said a further ECHR ruling in April in relation to Austria had “narrowed even further the terms by which votes could be denied to prisoners”. As a result it was “perfectly reasonable” for the government to take its time to consider the matter.

Responding to a question from Lord Tebbit on the popularity of giving prisoners the vote, Lord McNally replied: “I’m not sure it has any support in the editorial columns of the Daily Express or the Daily Mail, but I do think that in the broader general public there is a willingness to consider the experience of other countries both in the rehabilitation of prisoners and the kind of punishment meted to them.”

The coalition government has already committed to a detailed programme of constitutional reform, presenting it with an opportunity to comply with the judgement of the European Court. A cross-party committee of MPs and peers has been charged with producing a draft bill on an elected second chamber, and a political reform bill has also been proposed, along with a promised referendum on the Alternative Vote for electing MPs.

In the decision adopted after its meeting the Committee expressed “profound regret” that despite the repeated calls of the Committee, the United Kingdom general election was held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place. In December 2009, the Committee adopted Interim Resolution CM/ResDH(2009)160, in which it expressed “serious concern that the substantial delay in implementing the judgment had given rise to a significant risk that the United Kingdom general election in 2010 would be performed in a way that fails to comply with the Convention”, and urged the government to “rapidly adopt measures” to implement the judgment.

At its meeting in March 2010, the Committee reiterated its serious concern that “a failure to implement the Court’s judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court”.

The Prison Reform Trust understands that the news has been welcomed by the Association of Prisoners, who regret that the change has not come in time to benefit people in prison in England, many of whom plan to seek compensation, but will enable people in custody in Scotland, Wales and Northern Ireland to exercise their right to vote.

Juliet Lyon, director of the Prison Reform Trust, said: “We welcome the government’s decision to review the outdated and unlawful ban on sentenced prisoners voting.

“We hope that the government will now move swiftly so that prisoners will be able to exercise their right and civic duty to vote in next year’s national and local elections.”

At its meeting on 14-16 September the Committee of Ministers at the Council of Europe strongly criticised the UK coalition government for failing to inform the Committee on how it intends to abide by a 2005 European Court ruling (Hirst No. 2) to allow sentenced prisoners to vote.

UK compliance must be in time to enable people in prison to vote in the 2011 Scottish, Welsh, Northern Ireland and local elections.

In its decision the Committee said it “regretted” that “no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment”. This is despite the justice minister Lord McNally promising in a debate in the House of Lords on 10 June that the government was “considering afresh the best way forward on the issue of prisoner voting rights” and would “fully update” the Committee on the government’s intentions in time for the meeting in September.

At the Liberal Democrat party conference, a spokesperson for Nick Clegg, who is now leading on the issue of prisoners voting, acknowledged that the government needed to act on the judgment. At a fringe event co-hosted by the Prison Reform Trust, justice minister Lord McNally said that the government would inform the Committee of its plans in time for their December meeting.

In its submission to the Committee ahead of the September meeting the Prison Reform Trust asked the Committee to consider serving the UK government, in the absence of any concrete action, with formal notice of its intention under Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms that it will refer to the Court the question of whether the government has failed to fulfil its obligation. Submissions were also made by, amongst others, the Aire Centre, Liberty, Penal Reform International and UNLOCK.

In its decision the Committee said it had instructed the Secretariat, in the absence of any concrete developments, to prepare a draft second interim resolution, and would resume consideration of the issue at its 1100th meeting in November – December 2010.

The failure of the government to inform the Committee of its intentions raises serious questions over whether it will be able to comply with the judgment in time for next year’s elections. At its meeting in June, following the election of the coalition government, the Committee “expressed confidence that the new United Kingdom government will adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court”.

Reiterating repeated warnings over the years to the UK authorities to comply with the ruling, the Committee’s decisions called upon the United Kingdom to “prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect”.

It made clear that, in complying with the judgment, any remaining restriction on the franchise should be “proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned”. This would appear to mean that disenfranchisement may lawfully be imposed only on a small number of prisoners who have been sentenced for electoral fraud or a related offence. This is consistent with a recent European Court judgment in April (Frodl V Austria) which clarifies that the vast majority of prisoners will need to be given the vote for the UK to comply with the European Convention.

In December 2009, the Committee adopted Interim Resolution CM/ResDH(2009)160, in which it expressed “serious concern that the substantial delay in implementing the judgment had given rise to a significant risk that the United Kingdom general election in 2010 would be performed in a way that fails to comply with the Convention”. Despite the Committee’s insistence to “rapidly adopt measures” to implement the judgment the 2010 general election it was held in breach of the Convention.

The Committee said it “deeply regretted that despite the Committee’s calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1,340 applications.”

Commenting on the decision just released by the Committee of Ministers at the Council of Europe, Juliet Lyon, director of the Prison Reform Trust, said:

Foot dragging will no longer be tolerated by the Council of Europe which has given the coalition government just three months to comply with the outstanding Court judgement and, at last, overturn the outdated and counterproductive ban on prisoners’ voting.

This unequivocal decision should concentrate ministers’ minds as they make plans for electoral reform. People in prison, with the exception of those proportionately punished for electoral fraud, must be taken into account and enfranchised in time for the elections in Scotland, Wales, Northern Ireland and the local elections in 2011.

Notes:

DECISION No. 6

ADOPTION AT THE MEETING

109 2ndmeeting – 15 September 2010

Section 4.3

– 1 case against the United Kingdom

74025/01 Hirst No. 2, judgment of 06/10/2005 – Grand Chamber

Interim Resolution CM/ResDH(2009)160

Decisions

The Deputies,

1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;

2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;

3. deeply regretted that despite the Committee’s calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;

4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;

5. regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment;

6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;

7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;

8. decided to resume consideration of this item at their 1100th meeting (November-December 2010) (DH) and instructed the Secretariat, in the absence of any concrete developments, to prepare a draft second interim resolution.

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