Thursday 27 January 2011 by Joshua Rozenberg
Spare a thought for Mark Harper, junior minister at the Cabinet Office who is responsible for political and constitutional reform. A chartered accountant by training, he finds himself responsible for reducing the number of his fellow MPs; for introducing fixed-term parliaments; and for answering the unanswerable West Lothian question. But however demanding these issues must be, they pale into insignificance compared with the problem of allowing prisoners to vote.
Five days before Christmas, Harper slipped out a written ministerial statement announcing an end to the blanket ban on voting by prisoners. Offenders sentenced to less than four years in custody would retain their right to vote, he explained, but the sentencing judge would be able to disenfranchise them if appropriate.
And why four years? That had always been regarded as the dividing line between short-term and long-term prisoners. The government thought that granting the vote to prisoners sentenced to less than four years would be sufficient to comply with a ruling by the European Court of Human Rights in a case brought against the UK by John Hirst, a convicted prisoner.
Accepting Hirst’s arguments in 2005, the court’s grand chamber did not set a threshold below which the human rights convention would allow prisoners to vote. It merely said that ‘a general, automatic and indiscriminate restriction on a vitally important convention right must be seen as falling outside any acceptable margin of appreciation’ – the room for manoeuvre that all governments have.
But the coalition regarded a four-year sentence as the very lowest threshold that it could get away with. That much is clear from what Harper told MPs in a Westminster Hall debate on 11 January. ‘We set a limit which we believe is the minimum required to comply with our obligations,’ the minister said. ‘We will do what is legally necessary and no more.’
Enter Jack Straw. The former justice secretary was seen as largely responsible for failing to implement the Hirst ruling while Labour was in power. Straw knew there were no votes in it – except, I suppose, from prisoners.
Now in opposition, he teamed up with the disaffected Tory David Davis this month to secure a debate on the issue, using new powers that give backbenchers greater control of the parliamentary timetable.
Two days after Straw was told that time would be found for his debate, Downing Street pressed the panic button. Minsters briefed the BBC that they were now hoping to reduce the voting threshold to one year. Asked whether this would satisfy the human rights convention, the prime minister’s spokesman said on 20 January that setting the threshold was a matter for legal advice.
But of course the government has already taken legal advice. As Harper had told parliament little more than a week earlier, four years was regarded as the minimum required to comply with Britain’s treaty obligations – which require the government to ‘abide by’ the final judgment in any case to which the UK is a party.
A one-year voting threshold would not comply with the convention. This is confirmed by a ruling from the European court last April. In a case brought against Austria by a murderer called Helmut Frodl, the court said that ‘disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment’. That cannot mean everyone serving more than a year.
So where does non-compliance leave the government? Facing a compensation bill of £160m, the prime minister told parliament on 3 November. But commentators such as Adam Wagner of the UK Human Rights Blog find David Cameron’s figures implausible.
There are certainly plenty of prisoners who have lodged claims at the Strasbourg court. The solicitors’ firm Leigh Day represents 550. And, upholding a claim by two Scottish prisoners on 23 November, the court said it had received 2,500 similar applications. That number would continue to grow, the court noted, especially if the law was not changed in time for elections in May.
However, the court’s priority was clearly to get the UK to change the law for the future rather than to compensate prisoners for the past. No damages were awarded to the two Scottish prisoners, Robert Greens and a man known as MT. The government was ordered to pay some of their costs but the court made it clear that no costs would be awarded in the outstanding cases, which were all put on hold.
All this was subject to the condition that ministers introduce amending legislation – which they must do before the summer recess. Exactly what would be needed to comply with the Hirst ruling was left for the government to work out.
Of course, the prisoners’ applications would be restored if the government failed to legislate. But even then, the court seemed to be saying, there might be no financial penalties.
That is not very helpful to the government, which needs to tell its supporters that inaction would be costly. And it gets worse. Last week, the court decided that yet another murderer – this time an Italian called Franco Scoppola – had been wrongly deprived of his right to vote. Italian law sets the threshold for permanent disenfranchisement at five years’ imprisonment, although shorter sentences attract a temporary voting ban. Again, it was the indiscriminate ban on voting that fell foul of the convention.
This judgment is not binding on the UK. But the way forward is perfectly clear. Ministers must abandon the idea of a rigid threshold. No prisoner should lose the right to vote unless the sentencing judge says so.
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