Today in the House of Commons Members of Parliament overwhelmingly voted against extending the franchise to persons in prison having been convicted of criminal offences. The decisions of the European Court of Human Rights (ECtHR) in the case of Hirst v The United Kingdom ( ECHR 681) has effectively been ignored until now. The matter which it raises has been a thorny one for politicians as it will not go down well with the vast majority of the general public.
The ECtHR did not decide in Hirst that all prisoners should be given the right to vote and indeed it was very clear from its judgment that this was not the practical implication of its decision. What it has decided is that the automatic removal of a person’s right to vote upon being sent to prison having been convicted of a criminal offence is unlawful in terms of the European Convention. I dealt with a the relationship between the United Kingdom and the Convention and its institutions in a blog post yesterday evening and so do not intend to deal with those points in great detail here (though they are intrinsically linked in respects of the arguments put forward by opponents of prisoner suffrage).
While watching the debate in the chamber today through the BBC website I heard many arguments against the move and as is always the case some were more convincing than others. One MP argued that those who fought for the vote to be extended beyond male land owners would not have considered voting as a right but rather a privilege. This was one of the less convincing arguments that I heard during the debate. I was left wondering if I was the only person who understood the point of their fight for the vote being based on the principle that it was a right and not a privilege!
As I said above I am of the opinion that in some cases it is appropriate to remove the franchise from some people while they are in prison as part of their punishment. I have given some thought as to how I would approach this issue if I were a member of the Government and settled on the following (which I believe would comply with the judgment in Hirst):
1. All prisoners sentenced to 12 months in prison or less will retain their right to vote in all cases. 12 months is not an arbitrary figure that I magically pulled out of a hat, but it is based on the law as it currently stands in relation to those who can hold a seat in Westminster. Currently anyone sent to prison for 12 months or less can seek to be elected to Parliament and continue to hold their seat while in prison.
2. All prisoners sentenced to 12 months, but less than 4 years will lose their right to vote, unless otherwise ordered by the court
3. Where it is likely that an individual is going to be sentenced to a period of custody in excess of 12 months but less than 4 years may make an application before sentencing to not have their right to vote suspended. The court would consider as part of the sentencing process whether the individual should be permitted to retain the vote based on a set of guidelines issued by the Sentencing Council or the Supreme Court.
4. In cases where the individual is sentenced to a term of imprisonment of more than 4 years the question of their ability to vote could be considered by the Parole Board as part of their wider duties applying the same guidelines discussed in point 3 above. Prisoners would have to make an application to the parole board for this to be considered when making their application for parole.
Voting by prisoners would be conducted by way of postal vote and would be for the constituency in which their last known address was. In cases where they had no last known address their vote would be cast in the constituency where their parents currently reside. Where no parent remains alive, or where the parents are no longer in the United Kingdom it would be based upon the town in which their birth was registered. Where none of the criteria are met their constituency would be the one in which the court they were sentenced falls.
This would ensure that no one constituency is overly affected by prisoners voting and indeed that no one Member of Parliament is overly burdened by prisoners to the detriment of his or her other constituents.
As was pointed out in the chamber by some MPs today the United Kingdom cannot simply pick and choose which decisions of the ECtHR it follows. Courts make decisions which are unpopular with one party to the case before them; it is a consequence of their function. They are being asked to adjudicate between two parties who disagree with each other; this means that at least one party will not be happy with the outcome of the case. The United Kingdom agreed to have the ECtHR make judgments on matters relating to the European Convention on Human Rights and as such gave up part of its sovereignty when it did so. The giving up of sovereignty is part of the function of International Law. To allow a pick ‘n’ mix approach to judgments of the ECtHR undermines its authority and makes the convention a meaningless statement of intent.
Regardless of the Parliament’s decision in the vote today it is going to have to pass legislation that changes the law as it stands and it should do so having taken part in a reasoned debate that looks at more complex options, such as the one described above, to resolve the matter.