Prisoners may be unpopular but they should still vote

Prisoners may be unpopular but they should still vote

By David Pannick, QC

In October 2005, the Grand Chamber of the European Court of Human Rights decided that it is a breach of the European Convention on Human Rights for this country to disenfranchise all prisoners from voting in parliamentary and local elections.

At today’s general election, four and a half years later, that absolute ban persists. In a close contest, when the result in many seats may depend on a handful of votes, and when the identity of the next government may depend on a small number of seats, the unlawful exclusion of 85,000 prisoners from the right to vote is a constitutional disgrace that undermines the legitimacy of the democratic process.

In a further judgment last month, the European Court confirmed in Frodl v Austria that the 2005 decision makes it unlawful for Austrian law to disenfranchise all prisoners serving a sentence of more than one year in jail. The court emphasised that a decision to deny a prisoner the vote “should be taken by a judge, taking into account the particular circumstances”. Moreover, “there must be a link between the offence committed and issues relating to elections and democratic institutions”. All of this means that disenfranchisement may lawfully be imposed only on a small number of prisoners.

Votes for felons is not a popular slogan. But one of the core functions of the European Court is to protect the fundamental rights of unpopular sections of our society. Indeed, the more unpopular the victim, the stronger the need for proper judicial protection since political support will not be available.

For the United Kingdom now to hold a general election that defies the European Court’s ruling on eligibility to vote is, in itself, a matter of deep regret for a society that prides itself on the rule of law and democratic accountability.

The continuing ban also has more direct adverse consequences. It inevitably deters prisoners from taking an interest in the society that the vast majority of them will be rejoining at the end of their sentence. And it deters many candidates from taking an interest in penal issues when there are no votes to be had from those most directly affected.

The Ministry of Justice began to consult on what to do about the European Court judgment in December 2006. That first consultation ended in March 2007. A second consultation opened in April 2009 and closed last September. In the final weeks of the last Parliament, ministers insisted that they were not playing for time, desperate to avoid having to change the law before the election.

The continuing prevarication by the Government in complying with the European Court’s 2005 ruling is inexcusable, as Lord Ramsbotham, the former Inspector of Prisons, among others, has repeatedly told ministers in a series of questions and speeches in the House of Lords. In March, the Committee of Ministers of the Council of Europe understandably lost patience and warned the United Kingdom that it should “rapidly adopt measures, of even an interim nature, to ensure the execution of the court’s judgment, before the forthcoming general election”. The committee pointed out that a failure to do so could lead to thousands of compensation claims from prisoners who take the simple step of filing a claim for damages with the European Court in Strasbourg.

Leigh Day & Co, a London firm of solicitors, made such a claim two weeks ago on behalf of Leon Punchard, who is serving a sentence of 18 months’ imprisonment for burglary. It is difficult to put a price on a democratic right. But I would expect the European Court to award each prisoner in the region of £750, and possibly more in the light of the delay in implementing the 2005 ruling. It is difficult to predict how many prisoners will claim their compensation. The bill, which taxpayers will be meeting, may be a large one.

In 1992, Mr Justice Macpherson rejected a claim by a disgruntled voter who sought an injunction to stop the general election because he could vote only for “vested-interest political parties seeking their own ends”. Election law has its limits. There is no prospect of a prisoner obtaining an injunction in court today to stop the general election. Nor will our Supreme Court intervene after voting and before the result is declared, as did its American cousin in Bush v Gore, the hanging chads case in December 2000. The closest American presidential election in history was decided by one vote, the United States Supreme Court ruling 5-4 that there should be no further recounts in the state of Florida.

The statutory position is clear: prisoners cannot vote. The only remedy is in Strasbourg. There could not be a clearer demonstration of why this country needs a proper Bill of Rights. It gets my vote.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer. As a member of the House of Lords, he has no vote in the general election