Memo for Kenneth Clarke @ MoJ

Memo for Kenneth Clarke @ MoJ

"The Government has reached the preliminary conclusion that to meet the terms of the judgment a limited enfranchisement of convicted prisoners in custody must take place, with eligibility determined on the basis of sentence length."

As Frodl v Austria (8 April 2010) points out it must be the full enfranchisement to fully meet the Hisrt v UK(No2) judgment.

As the Joint Committee on Human Rights observes:

"We are concerned that, despite the time taken to publish the second consultation, the Government's proposals appear to take a very limited approach to the judgment in Hirst. As we noted earlier in this report, this type of approach can lead to further unnecessary litigation with the associated burden on the European Court of Human Rights and the taxpayer. We accept that the Grand Chamber left a broad discretion to the United Kingdom to determine how to remove the blanket ban. However, the Court stressed that withdrawal of the franchise is a very serious step and gave guidance on the types of offences which might rationally be connected with such a step. We are not persuaded that automatic disenfranchisement based upon a set period of custodial sentence can provide the "discernible link between the conduct and circumstances of the individual" and necessity for the removal of the right to vote required by the Grand Chamber. In our view, this approach will lead to a significant risk of further litigation".

The JCHR continues:

"In December 2009, the Council of Europe's Committee of Ministers issued an interim resolution in respect of the delay in this case. The interim resolution is a significant and serious step and is couched in unambiguous terms. The Committee of Ministers "expresses serious concern that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election…will be performed in a way that fails to comply with the Convention".".

Lord Bach stated "that it was the Government's view that the legality of the election would not be affected by the ongoing incompatibility with the ECHR caused by the blanket ban on prisoner voting".

Shall we subject this to the Hirst test?