The prisoner votes saga: a suitable end?

Updated: Aug 14, 2020

On the 7th December the Council of Europe accepted the UK government’s proposal to end the blanket ban on UK prisoners’ right to vote. This proposal is a response to the European Court of Human Rights’ ruling in Hirst v UK (No 2) [2005]. In this case the Court held that the UK’s blanket ban on prisoner votes is against Article 3 of Protocol No. 1 of the ECHR (the “Right to free elections”). This article outlines a couple of key questions that the “prisoner votes saga” raises. Firstly, should we accept the Court’s ruling in Hirst (No 2) and secondly, is the UK’s accepted solution satisfactory? The blanket ban: a human rights breach? There are strong arguments in favour of the UK following rulings such as Hirst (No 2). Such arguments may highlight the importance of prisoners being able to keep their sense of dignity or the benefits of prisoner votes from a rehabilitation point of view, this right encouraging prisoners to maintain a level of engagement with society. However, is there any room for someone who champions human rights to support a blanket ban? The “right to free elections” is not an absolute right, thus the Court ruled that the blanket ban was a disproportionate restriction on the right to vote. It said that although the ban had a legitimate aim (to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law) the blanket nature was excessive and not necessary in a democratic society. However it seems, at least to me, plausible to argue that a blanket ban is not in fact excessive because it only applies to those who have been convicted of crimes serious enough to warrant a custodial sentence. This is the argument that was made (unsuccessfully) by the UK government, although it is worth noting that the Hirst (No 2) verdict was not a majority decision. The ECtHR’s verdict in Hirst (No 2) is thus not uncontroversial. The proposed solution The UK’s solution, aiming to bring the UK in line with its international commitments, would give the vote to prisoners on temporary release and at home under curfew. Given that estimates suggest that this will affect under 100 prisoners[1], some will argue that this proposal does not go far enough and will question whether such a small material difference really changes the situation regarding prisoner votes from disproportionate to proportionate. Nevertheless, the proposal should not be dismissed as insignificant. Firstly, it is important that the UK is seen to abide by ECtHR rulings because if the UK doesn’t comply with the ECtHR it gives other countries an excuse to similarly ignore the Court. Moreover, from at least a political constitutionalist point of view, it is important that the UK government is given a margin of discretion to work out what is and isn’t “proportionate” for both competency and democratic reasons. This latter point leads me to conclude that those against the ECHR would do well to remember that many of the Convention rights are drafted in non-absolute terms and, in contrary to the notion that the ECtHR strives to take away all sovereignty from the British courts, in reality the Court has long followed the margin of appreciation doctrine. This doctrine affords national governments a degree of freedom in regards to the fulfilling of their ECHR obligations. The fact that the Council of Europe was prepared to accept a proposal that would only allow a small minority of prisoners the vote weakens the claim that the ECHR has taken away too much power from UK electives and exposes the often oversimplified narrative of those who take this stance.

[1] http://www.bbc.co.uk/news/uk-42271100

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