The new guidance on prisoner voting is not an elegant solution, it’s a cowardly gesture

David Lidington, the Secretary of State for Justice, made a formal statement in Parliament on Thursday about the troublesome issue of prisoners voting. Understandably, in the rather excitable atmosphere gripping Westminster at the moment it did not attract a great deal of attention. It was praised by some of those present as a limited but “elegant” solution to the problem that the United Kingdom has, for at least the last 12 years, been in breach of its obligations under international law. This praise was misplaced. It amounted to no solution at all. It was a dismal, empty gesture which at best may buy a little time, but it will besmirch this country’s international reputation and lead inevitably to further embarrassment in the European Court of Human Rights (ECtHR).

In order to understand what is going on we need to touch on a little law. Although the most important parts of the European Convention on Human Rights are written in perfectly clear English – I can’t speak authoritatively for the French version – there is something about the scheme of wordy diplomatic language with its “High Contracting Parties,” “instruments of ratification,” articles and protocols and whatnot at the ECtHR that can make the eyes glaze over. Sometimes the judgments seem to have been written by committee (which they often are), requiring one to wade through a sea of verbiage before arriving at a rather opaque point.

I will try to keep things as simple as possible.

As the always well-informed readers of Barristerblogger will know, in the 2005 case of Hirst v. The United Kingdom, the ECtHR ruled that Britain’s complete ban on convicted prisoners voting in elections was an unjustifiable breach of Article 3 of Protocol 1 of the ECHR, which provides:

“The High Contracting Parties undertake to hold 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.”

The Court held that whilst this provision did not create “absolute” rights (contrast, for example with the right not to be subjected to torture), universal suffrage was nevertheless “crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.” Individual countries with their different traditions could legitimately have different electoral rules but the presumption should be in favour of all adults having the right to vote. Any restrictions placed on this right risked “undermining the democratic validity of the legislature thus elected and the laws it promulgates.” In order to be permissible, such restrictions, the Court held:

(a) Must be in pursuit of a legitimate aim;

(b) Must not be disproportionate;

(c) Must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage

The majority of the Court decided that the British ban on prisoners voting did not comply with these principles. Voting in elections was a right, not a privilege that could be taken away without proper justification. Prisoners, of course, lose their right to liberty but they should not automatically lose any other human rights; on the contrary they should retain them unless there is a good reason for them not to:

“Any restrictions on these other rights must be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment.”

So far as the right to vote was concerned, there was no justification for this to be automatically removed from all convicted prisoners. The Court readily accepted that it could sometimes be legitimate for convicted criminals to be deprived of the right as a punishment, especially if the deprivation were to be imposed by a judge on the basis of individual features of a particular case and on some identifiable and rational basis.

The case was brought by Mr Hirst, who over the years has been a regular litigant and has proved a thorn in the side of successive governments. He killed his landlady with an axe in 1980. He was convicted of manslaughter on the grounds of diminished responsibility. He has an incurable personality disorder. The trial judge imposed a life sentence, with a minimum term of 15 years. This means that he considered 15 years to be the sentence necessary for the purposes of punishment. Since 1995 he has not been in prison to be punished, but solely to safeguard the public from his potential violence if he is released.

He is not an attractive poster-boy for human rights, but one of his arguments has a compelling logic. When the justification for his imprisonment is public protection rather than punishment, what legitimate aim is served by continuing to deny him the vote?

At the other end of the scale, the Court pointed to the fact that a conviction for the same crime might result either in an immediate prison sentence, or a sentence of suspended imprisonment despite there being no relevant difference in the criminality. Indeed, one could go further: sometimes a person might receive a short prison sentence for a comparatively minor offence – let’s say 12 weeks for feeding pigeons or 2 ½ years for not wearing trousers – while another receives a suspended prison sentence for an even more serious offence – perhaps 18 months for a wounding in a pub brawl or a white collar fraud. On what rational basis should the pigeon feeder or the naked rambler be denied the right to vote when the drunken thug and the devious fraudster is not? That is the law as it currently stands, and (at least in the view of the ECtHR) it is impossible to discern any legitimate aim, proportionality or rational basis for such distinctions.

It is sometimes wrongly assumed, though I am sure very rarely by readers of this blog, that the direct effect of a ruling from the ECtHR is to make law in the United Kingdom. It is not. Rather, it is to tell the British government what its obligations under the Convention are, and to require it, as a matter of international law, to ensure that British domestic law complies with those obligations. In principle that should not be difficult. The law in question is S.3 of the Representation of the People Act 1983:

(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election.

It is often assumed that the statutory bar on prisoners voting in elections has existed since time immemorial. In fact, there were no legal restrictions on prisoners’ voting until the enactment of the Forfeiture Act 1870, S.2 of which disenfranchised prisoners who had a sentence of over 12 months. Quite how, if at all, prisoners with shorter sentences were able to exercise their right to vote is not clear, given that postal voting did not exist in the nineteenth century, although it may be that some form of proxy voting was possible.

S.2 (3) of the Representation of the People Act 1948 actually made specific provision for persons “detained in legal custody” to be registered to vote at their home address, and made it possible [S.8 (1) (e)] for those “no longer residing at their qualifying address” to vote by post. The clear intention and the effect was that prisoners serving sentences of 12 months or less, who were still on their home electoral roll were able to vote in elections between 1948 and 1969. For example, The Gloucester Citizen reported on 20^th February 1950 that:

“Many prisoners in Gloucester Gaol and at the prison-without-bars, Leyhill, have taken advantage of the facilities granted for recording their votes in the general election by post”.

It was not until 1969 that the complete ban on convicted prisoners voting was imposed, an unusual instance of the law being made less liberal at the end of the swinging sixties. The change followed the recommendations of an all party Speakers Conference on electoral law in 1968, although precisely what reasons the caused the Conference to make its recommendations seem to have been lost.

Given that prisoners were permitted to vote during the 1950s and 1960s it is hard to understand why this has now become such an emotive issue. David Cameron told the House of Commons (implausibly) in 2011:

“It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.”

Many MPs have agreed with him, half-hearted attempts to change the law have been rejected by Parliament, and the result has been that the ECtHR has confirmed repeatedly since 2005 that the British Government remains in breach of its obligations.

Last December the Government gave an undertaking to the Council of Europe, the inter-governmental organisation which is meant to ensure compliance with judgments of the Court, that it would, within 12 months, “provide proposals to address the Hirst judgment.”

That brings us to Mr Lidington’s statement to the House of Commons on Thursday. What has he in fact proposed?

The answer is virtually nothing. The offending section of the Representation of the People Act is to remain unchanged. All convicted prisoners will still be barred from voting “whilst detained in a penal institution.” The one, tiny relaxation – and it is more apparent than real – is a promise to

“… amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.”

Patently this small anomaly, if it can properly be so described (which it cannot), does not even begin to address the issues raised by Hirst. It wasn’t mentioned by the Court and if Mr Lidington seriously believes that tinkering with the “guidance” to prison governors about what prisoners are permitted to do whilst on Temporary Release will somehow solve the problem, then one can only assume that the Minister of Justice has fallen into the hands of legally illiterate public relations gurus.

The reason tag-wearing offenders released on Home Detention Curfew are able to vote is because they are no longer “detained in a penal institution,” and therefore not caught by S.3 of the 1983 Act. They have been, as the Minister himself succinctly puts it, “released.” There is no anomaly in such people being able to vote. They are no longer “prisoners.”

Prisoners released on temporary licence, on the other hand, are still prisoners. They have not been released. If that were an end to the matter. S.3 would mean they would not lawfully be able to vote. There is, however, an ambiguity in the meaning of the words “detained in a penal institution.” This could mean either:

(a) Legally detained in a penal institution, in the sense that their freedom to come and go is determined by the penal institution;

or

(b) Physically detained inside a penal institution.

Until Mr Lidington’s announcement most lawyers I guess, if they had given the matter any consideration, would probably have instinctively gone for meaning (a), which would mean that prisoners on temporary release would not lawfully be able to vote. Mr Lidington has now implicitly said that meaning (b) is correct. He said in answer to a question from Phillip Davies MP that there were to be “no changes in the law” (and hence no Parliamentary vote) but prisoners on temporary release will now be able to vote. If there is to be no change in the law it follows that the Minister’s view must be that Section 3 does not in fact bar prisoners on temporary release from voting.

If he is right about that, then prisoners on temporary release are already allowed to vote and the whole announcement has been a complete waste of time. If he is wrong about it then notwithstanding his announcement that they will be able to lawfully vote, in fact they will not be. A Minister, even a Minister of Justice, cannot change the meaning of a statute just by announcing “guidance” that from henceforth it means something else.

In fact, whether he is right or wrong is largely beside the point. The numbers of prisoners who might even theoretically benefit from the new guidance is miniscule. According to Mr Lidington it was “up to 100,” which of course could – and I suspect might well – mean absolutely nobody at all.

The only prisoners even potentially able to exercise the right to vote while on temporary release will be those who are still on the electoral roll. Anyone who has been in custody for over 12 months will no longer be on the electoral roll (you can remain on an existing electoral roll, but you cannot join the next year’s whilst in prison), and depending on the date that they are imprisoned many will drop off much sooner than that (which incidentally introduces yet another arbitrary and entirely random factor determining eligibility to vote).

Even among this small subset of prisoners, hardly any will actually benefit in practice. This is because Mr Lidington said:

“These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.”

Release on Temporary Licence is a form of temporary discretionary parole most often in the form of “resettlement release” towards the end of long sentences, often to allow prisoners to work outside prison. No-one who has been serving a long sentence will be eligible to vote anyway, and “resettlement release” is not available to category A or B prisoners.

Though theoretically available whatever the sentence length, resettlement release is rarely used in the case of short sentences where prisoners might still be on an electoral roll. Such prisoners might occasionally be granted ROTL if they are the sole carers for children, or for special, one-off purposes such as visiting terminally ill relatives or attending a funeral, or perhaps for an overnight stay out of prison towards the end of a sentence. It is up to the Secretary of State (or in practice the governor of the relevant prison) to issue licences to prisoners granted ROTL, and the licences would normally specify what activities the prisoner is allowed to undertake while on release. Prison Service Order 6300 (which sets out the existing rules which governors apply) is currently silent about whether prisoners on ROTL are allowed to vote in elections; presumably the substance of the “guidance” that Mr Lidington is proposing would be to the effect that from now on ROTL licences will explicitly permit prisoners to vote if they are otherwise eligible to do so.

Unfortunately, even amongst the tiny numbers of prisoners who might be released on ROTL at election time, and be entitled to vote, there is a yet another obstacle to them actually doing so: unless they happen to to be temporarily released to the place where they are on the electoral roll they will not be able to get to a polling station to vote anyway.

In summary, Mr Lidington’s proposed solution to the Hirst conundrum is so inconsequential that it is would not be unfair to call it frivolous. It does not alter any part of the law that the ECtHR said should be altered; if it has any effect at all (which is doubtful) it will apply to hardly anybody, and those to whom it will apply would probably have been entitled to vote anyway.

It is perfectly true that amongst the human rights issues of our time, the ban on British prisoners voting in elections is some way off being the most important. There are perfectly reasonable arguments either way. The judgment in Hirst is certainly not beyond criticism (see in particular per Lord Sumption in Chester & McGeoch [2013] UKSC 63) But whatever your views on that issue, or even on Britain’s membership of the Convention itself, ridiculous ruses like Mr Lidington’s do not help at all. Once again, where our political leaders should be offering leadership we see only pusillanimity, cowardice and a flinching away from any confrontation with popular opinion. This is particularly regrettable coming from a Lord Chancellor. Having agreed to accept the rulings of the ECtHR, this country should not feel able flagrantly to ignore its rulings, and to do so more or less indefinitely. It is the clearest breach of international law, it demonstrates that Britain cannot be trusted to keep its word, and it undermines any chance that the ECtHR has of protecting human rights in countries like Russia or Turkey where the remnant of the rule of law is sometimes the only hope for those facing arbitrary detention, unfair trials and perhaps even the gallows.