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Last month the Prison Reform Trust sought my legal advice in response to Lord Falconer's dodgy dossier. (Some readers may recall that recently Greenpeace won a High Court action in another legally flawed consultation exercise.) That advice was accepted by the PRT and is now the subject of a press release. I have published it below.

Response of the Prison Reform Trust to the consultation produced by the Department for Constitutional Affairs:


‘Voting Rights of Convicted Prisoners Detained within the United Kingdom

The UK Government’s response to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst v. The United Kingdom’






February 2007






For further information contact
Juliet Lyon, Director
Geoff Dobson, Deputy Director
E-mails: juliet.lyon@prisonreformtrust.org.uk geoff.dobson@prisonreformtrust.org.uk Tel: 020 7251 5070


PRISON REFORM TRUST, 15, Northburgh Street, London EC1V 0JR
Tel: 020 7251 5070 Fax: 020 7251 5076
E-mail: prt@prisonreformtrust.org.uk


The Prison Reform Trust (PRT) is an independent UK charity working to create a just, humane and effective penal system. We do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, Government and officials towards reform.


INTRODUCTION

The Prison Reform Trust (PRT) was pleased to be granted permission by the European Court of Human Rights (ECtHR) to intervene in writing in support of the applicant’s position at the Grand Chamber. PRT welcomed the judgment that Mr Hirst’s convention rights under Protocol 1 Article 3 had been breached.

Protocol 1, Article 3 of the European Convention on Human Rights guarantees “free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” This guarantee is now contained in the Human Rights Act, which became part of law throughout the United Kingdom on 2 October 2000.

The electoral ban on sentenced prisoners voting is contained in Section 3 of the Representation of the People Act 1983, amended by the Representation of the People Acts 1985 and 2000. The disenfranchisement of sentenced prisoners dates back to the Forfeiture Act of 1870. The origins of the ban are rooted in a notion of civic death, a punishment entailing the withdrawal of citizenship rights.

Remand prisoners, people imprisoned for contempt of court and fine defaulters held in prison are eligible to vote. The Electoral Commission has been working to ensure that those held on remand, a target group in the Commission’s categorisation of ‘hard to reach voters’, are fully aware of, and can exercise, their rights. The anomalous position of the very many British citizens held in prisons overseas is not stated in consultation paper annex A, ‘History of the UK’s policy on voting rights of prisoners’. It is however highlighted by the following parliamentary question and the response given on 7 February 2007:
Prisoner Voting
Mr. Heald: To ask the Minister of State, Department for Constitutional Affairs whether British citizens imprisoned in jails overseas are eligible to vote in UK general elections if they have been resident in the UK in the last 15 years. [117622]
Bridget Prentice: The Representation of the People Act 1985 (as amended) provides a facility for British citizens overseas to retain their voting rights if they have been resident in the UK in the previous 15 years, so long as they are not otherwise subject to a legal incapacity to vote. The Representation of the People Act 1983 makes convicted prisoners detained in a penal institution (or unlawfully at large from one) legally incapable of voting in a UK general election. However, ‘penal institution’ is defined in the 1983 Act by reference to Prisons Acts, which do not extend to foreign jails.
Accordingly, British citizens imprisoned in jails overseas are eligible to vote in UK general elections if they are otherwise eligible to vote as an overseas elector under the relevant provisions of the Representation of the People Act 1985.

Other important omissions from annex A of the consultation paper, ‘History of the UK’s policy on voting rights of prisoners’, include, the policy clarification given by then DCA minister Chris Leslie that prisoners serving a sentence of intermittent custody would be entitled to vote in an election if the date for this fell on a day when their punishment was being served in the community rather than a day when it was being served in custody, underscoring the ad hoc, and somewhat confused, situation regarding prisoners’ voting rights. Nor did it give the grounds for dismissal of other UK legal challenges namely that the enfranchisement of prisoners was said to be a matter for parliament not the courts (England and Wales High Court (Administrative Court) decisions (4th April 2001) Pearson and Mertinez v. Home Secretary and others; Hirst v. Attorney General BAILII Database EWHC Admin 239).

In March 2005 PRT and UNLOCK’ the national association of ex-offenders, published a briefing paper Barred from Voting: the right to vote for sentenced prisoners. The briefing concluded:

The UK ban on prisoners voting is a relic from the nineteenth century, which is neither a deterrent nor an effective punishment. The right to vote poses no risk to public safety. Giving prisoners the vote would encourage them to take the responsibilities that come with citizenship. It would also encourage politicians to take more of an active interest in prisons, which in turn should raise the level of debate about prisons and penal policy. There is widespread support for the removal of the ban, which the European Court has ruled violates human rights law. The Government should act to restore the right to vote to sentenced prisoners without delay.

PRT believes the current consultation to be a flawed exercise. It precludes a legitimate option from consideration: that all sentenced prisoners should be enfranchised as is the case in many other EU countries. This is the option favoured by PRT.

Moreover, it declares a Government view in favour of the status quo. It invites respondents contrary to the ECtHR ruling to comment on an option declared unlawful – that of automatic, blanket disenfranchisement. This calls into question the validity of the consultation process. The nature of the consultation exercise will doubtless be a matter for consideration, either by the Parliamentary Ombudsman or when Parliament is presented with legislative proposals.

Since the consultation paper was produced the Republic of Ireland has moved fully to enfranchise its prisoners. Following parliamentary debate, the Dial decided to meet ‘ fully our obligations under the relevant provisions of The Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms’ (Dial Debate, Vol.624 No %, Electoral (Amendment Bill) 2006:Order for Second Stage). Eighteen out of 51 Council of Europe countries have no restrictions on voting. In the case of prisoners held in British and American jails in Iraq the decision was taken that they should maintain their voting rights as an ‘aid to the democratic process’. Some European countries ban some sentenced prisoners from voting. For example, in France courts have the power to impose loss of voting rights as an additional punishment. The UK remains one of only nine Council of Europe countries to disenfranchise sentenced prisoners.

The Grand Chamber based its ruling on the following general principles:

i) Protocol 1, Article 3 “the Court has established that it guarantees individual rights, including the right to vote” and that “it required the government to take positive measures as opposed to merely refraining from interference” (paras. 56-57).
ii) Democratic Principles, “The Court would use this occasion to emphasise that the rights guaranteed under Article 3 of Protocol No1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law”(para.58).
iii) Universal suffrage, “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion...Universal suffrage has become the basic principle” (para59).
iv) Legitimate aim, the Grand Chamber recognises that Article 3 of Protocol No.1 does not specify or limit the aims which a measure must pursue. The Grand Chamber rejected “the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty, and especially the assertion that voting is a privilege not a right...It recalls that the Chamber in its judgment expressed reservations as to the validity of these aims, citing the majority opinion of the Canadian Supreme Court in Sauve (No.2)(paras.74-75).
v) Proportionality, “The Court recalls that the Chamber found that the measure lacked proportionality, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired”(para.76).
vi) Margin of appreciation, “while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, as being incompatible with Article 3 of Protocol No.1(para.82)”.


The Grand Chamber also stated:

“There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any 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” (para. 70).

While the consultation paper makes reference to the above, it also indicates government’s view that the enfranchisement of sentenced prisoners, citizens behind bars, is unlikely to find favour with the public. It makes no reference to those on public record as fully in support of the enfranchisement of sentenced prisoners, nor does it refer to their stated reasons for coming to this view, based on considerable experience and knowledge. These include former and current HM Chief Inspectors of Prisons, the Prison Governors Association, the Anglican and Catholic Bishops to Prisons, the Archbishop of Canterbury, the many organisations working in the field which comprise the Penal Affairs Consortium, Liberty and other civil liberties and human rights organisations, former Home Secretary, Douglas Hurd, member of the Home Affairs Select Committee, David Winnick MP and other parliamentarians across parties (EDM posted 2nd March 2004).

Finally, it is worth reflecting that the ECtHR ruling that the UK Government’s blanket ban on sentenced prisoners voting was in violation of Protocol 1, Article 3 of the European Convention on Human Rights was made in March 2004. The finding was unanimous. The appeal to the Grand Chamber, the delay before a response was given by the UK Government and the announcement of two consultation exercises might be described as procrastination.

The remainder of this response comprises answers to the questions in the consultation paper. PRT takes the view that the narrative and questions in the consultation paper are skewed to produce answers in support of the Government’s position and to inhibit views in favour of the enfranchisement of all sentenced prisoners. PRT regrets that the Government did not accept the ECtHR ruling as an opportunity to consider the benefits that would arise from giving sentenced prisoners the right to vote.



RESPONSES TO THE QUESTIONNAIRE

Question 1
Do you support the proposal that enfranchisement of detained prisoners should be determined by reference to the length of sentence they receive?

No – PRT believes that all prisoners should have the right to vote.

Question 2
What length of sentence do you consider appropriate as the threshold above which prisoners will be disenfranchised? Please give reasons for the threshold you suggest.

The case for enfranchising all prisoners stems from the view that they remain citizens while incarcerated, deprivation of liberty being their punishment. Removal of the nineteenth century concept of ‘civic death’ would provide a clear statement of their citizenship and act as an aid to rehabilitation and eventual resettlement. It would allow prisoners a continued, tangible stake in society. It is worth noting that John Hirst brought his case to the ECtHR, and was considered to meet its admissibility criteria, whist serving a sentence for the serious offence of manslaughter

Question 3
Should the decision to either grant or withdraw voting rights from convicted prisoners be made by UK sentencers on a case by case basis, at the time of sentencing? Please give reasons to support your view, eg. If you do not believe sentencers should be given a power to determine voting rights, is this because you believe it would place an unjustifiable burden on sentencers?

No – there is no need for courts to consider the matter on a case by case basis if all prisoners are enfranchised.

Question 4
If the Government were to follow this approach, which variant do you favour?
that statute should provide that convicted and sentenced prisoners should automatically lose their right to vote, but subject to the sentencing judge’s right to specify that they shall be entitled to retain that right.
That statute should remove the general rule of disenfranchisement of sentenced prisoners, but should confer on sentencing judges the right to disqualify sentenced offenders.

Neither – the general rule of disenfranchisement should simply be removed.

Question 5
Should offences specifically related to the electoral process automatically attract a withdrawal of the franchise? Please provide reasons to support your answer.

No – by retaining the franchise those who have attempted to manipulate the process would be constantly reminded of the importance of an inclusive, democratic process.

Question 6
Should any voting rights given to prisoners detained in mental hospitals be determined on the same basis as ordinary prisoner, or are there any categories that should be treated exceptionally? Please list those categories and give reasons.

As before, all prisoners should have the right to vote.

Question 7
If your answer to question 6 was no, do you consider that any categories of detained offenders in mental hospitals should be enfranchised?

PRT’s answer to question 6 is ‘Yes’.

Question 8
Should any of the circumstances covered by the statutory provisions referred to in Annex B more properly be aligned with the position of pre-conviction remand prisoners?

Yes – unconvicted and convicted persons in the categories set out in Annex B should be enfranchised.