The forthcoming electoral reform referendum and the Scottish and Welsh elections could be declared illegal if a ban on prisoners voting is maintained, MPs have been warned.
By Rosa Prince, Political Correspondent 1:14PM GMT 01 Feb 2011
The country’s top lawyers said that a ruling by the European Court, which said that the blanket ban had to be lifted, meant that prisoners denied a vote would be free to challenge the outcome of the polls, which are due to take place in May.
Giving evidence before a parliamentary committee, the lawyers said that a prisoner could even attempt to halt the elections, by applying to the Court which sits in Strasbourg.
The advice creates an additional headache for the Government, which is already facing a substantial rebellion by Conservative MPs who oppose ministers’ plans to allow any prisoner serving a sentence of less than four years to exercise their democratic rights.
In the face of growing revolt, it was announced that a free vote would be held on a rebel amendment to be heard in the House of Commons next week which would limit this right to prisoners serving less than one year.
However, MPs on the Political and Constitutional Reform Committee heard evidence from legal experts suggesting that neither proposal would accord with EU law, which states that judges must decide whether to remove voting rights, and how long for, on a case by case basis.
Any move by the Government is unlikely to come into force in time for the referendum on replacing the first past the post voting system with the alternative vote form of proportional representation, or the elections to the devolved assemblies which take place on the same day.
The lawyers also warned that even once the new arrangements were in place, prisoners who had already been sentenced would almost certainly have a legal right to have their cases reviewed – which would be an expensive and time-consuming process.
MPs on the committee expressed outrage at the advice, which Eleanor Laing, the acting chairman, compared to opening a "barrel of worms,” with some suggesting that Britain could end up withdrawing from the European Union as a result.
Andrew Turner, Conservative MP for the Isle of Wight, insisted that Parliament remained sovereign.
But the lawyers, including Lord Mackay of Clashfern, who was lord chancellor under the Thatcher and Major goverments, said that Parliament had decided in 1950 to put British law under the control of the Court in an attempt to avoid a repeat of oppression of minorities seen in Nazi Germany.
Andrew Griffiths, Tory MP for Burton and Uttoxeter, said however that the Court was “out of step with the vast majority of the British public who oppose giving prisones the right to vote”.
He told the lawyers: “I speak as a constituency MP who has received dozens of letters outraged at the thought of giving prisoners the vote and I have received only one in support, and that was from a convicted murderer.”
But Lord Mackay said: “I appreciate fully the difficulty the MPs face in this area. I think it is a question of courage and leadership.
“They have to think about this area. The rule of law is very valuable to us, we tend to take it for granted but we have to make sure that we don’t let it slip.”
Aidan O’Neill, one of the country’s top barristers specialising in EU law, said that while the United Kingdom remained “convention incompatible” by defying the Court over prisoner voting, any elections to a legislature, including the devolved assemblies, would be illegal.
He said: “At some level, compensation claims for prisoners is what faces politicians. In order to avoid that, something has to be done and has to be done quickly.”
Asked if the elections and referendum could be held up as a result, he added: “It would be challengeable on strong grounds. This is reaching the crunch point now.”
Mrs Laing said: “You are certainly opening a can of worms here – a barrel of worms.”
Around 70,000 prisoners are currently barred from voting in the UK.
Eric Metcalf, human rights lawyer at the Justice campaign group, said that the ultimate sanction if the UK continued to defy the ruling was to be suspended from the European Court, and ultimately the EU.
Christopher Chope, Conservative MP for Christchurch, said warned that “judicial activism” was threatening the “sovereignty of the people”.
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