Today the European Court of Human Rights (ECtHR) issued its judgment in Scoppola v Italy (No.2), a case in which the United Kingdom was permitted to intervene by the Court. It was an important case for the United Kingdom as it gives direction as to just how far the ECtHR expects the UK to go to comply with the decision in Hirst v United Kingdom (No. 2).
John Hirst, convicted of Manslaughter and sentenced to 25 years imprisonment, brought a case against the United Kingdom under Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR). Article 3 of Protocol 1 provides for the right to free elections. Mr Hirst argued, successfully, that the UK’s blanket and automatic ban on convicted prisoners being able to exercise the right to vote was a disproportionate interference with his Human Rights. Since that judgment both the previous Labour Government and the current Conservative-Lib Dem Government have tried to ignore the judgment.
Last year the House of Commons had a free vote on the issue and overwhelmingly voted to maintain the ban in its current format. However, that will not permit the Government to ignore the ECtHR’s decision that the ban in its current form violate the Convention and must be changed. The Hirst (No.2) judgment has angered a lot of MPs and many in the country as well. There has been talk of unelected judges dictating to the UK. However, this rhetoric ignores that fact that the United Kingdom agreed to be bound by the decisions of the Court and that includes those that it doesn’t like.
Scoppola v Italy (No. 2)
In Scoppola the Grand Chamber of the ECtHR held that there had been no violation of Article 3, Protocol 1 of the ECHR. This was because, unlike the UK, Italy does not have a blanket ban on convicted prisoners voting. In Italy, the ban only affects those convicted of crimes against the State or the administration of justice and those service sentences of imprisonment in excess of three years.
The Attorney General, Dominic Grieve MP QC, appearing for the UK Government, successfully argued that States have a wide degree of discretion in what prisoners are allowed to vote. However, the ECtHR was resolute in its position that the UK’s current blanket ban is a violation of the Convention and must be changed. What this means for the UK Government is that while it will need to remove the blanket ban there is a wide margin of appreciation in how it complies with the judgment in Hirts (No 2) and others. The ECtHR has said that it could be up to judges to remove the right in individual cases or it could be by way of an application of law (i.e. a statute setting out which prisoners can and cannot get the vote).
The United Kingdom has six months to lay legislation before Parliament in order to comply with the judgment of the ECtHR. That means we can expect legislation to begin its way through the Parliamentary process no later than 23 November 2012.
This is going to continue to be a thorny issue for the Government. They will be introducing this legislation against their own will, against the will of the majority of Parliament and against a very large section of the UK population. There is likely to be a significant amount of rebellion in the Commons as the legislation passes through. However, what is good for the Ministers is they have a great deal of cope of how they approach this question. It will not be the case (nor has it ever been the case) that murders and rapists will be given the right to vote (two categories of prisoners Mr Hirst has taken great pleasure in saying must get the vote following his case in Strasbourg). They will of course need to be careful that the change is properly considered and that due consideration is given to the seriousness of the offences committed and the length of sentence being served. These are two issues that it appears Strasbourg will look at when deciding whether the position on prisoners voting is compliant with the ECHR or not.
There are a number of solutions to this issue, some of which are more likely than others. The first would simply to be enfranchising all prisoners and leaving it at that. Another solution would be to enfranchise some and not others. Another solution might be to enfranchise all prisoners and leave it up to the sentencing judge to decide if a prisoner should have their right to vote removed while in custody.
The most likely solution will be the second described above. We will likely see an amendment to the Representation of the People’s Act extending the franchise to some prisoners. I suspect what we will see is all those serving 12 months or less imprisonment following conviction on a summary complaint being given the vote. That would appear to be sufficient to satisfy the ECtHR as it would give consideration to the length of sentence (implying that a sentence of more than 12 months denotes a serious crime) and the seriousness of the crime (only the more serious cases are dealt with on indictment, certainly in Scotland anyway). Such a solution would likely be more palatable to Parliament and to the UK population as well.
The problems do not stop with the question of which prisoners will get the vote. There are a great many procedural matters to overcome. It would unlikely be sufficient for the UK to amend the law, but then not really provide the logistics for making it happen. If that were the case what would have changed? There would still be an effective blanket ban on prisoners voting and we would be back in Strasbourg.
Will we see polling stations erected in prisons? Unlikely, prisoners will probably be entitled to vote by postal vote.
In which constituency would they be voting? It could rather skew the result in constituencies with prisons in them if that we where they would vote. What is likely to be the case is that the vote would be for the constituency in which the prisoner’s last known address was and in the constituency where the prison lies where the last known address is not known.
In short, when the United Kingdom goes to the polls to elect its representatives to the European Parliament in 2014 there will be a category of prisoners eligible to vote in those elections.