The issue of prisoner voting rights is an issue that has been subject to vigorous political and legal debate in the UK over the past decade. For many on the right of the political spectrum this issue has become the target for frustration over the influence of European institutions on UK law and raises the fundamental issue of sovereignty. For those on the left it is symbolic of a battle against the erosion of human rights and signifies the pursuit of a more rehabilitative theory of justice.

This author is of the opinion that the issues raised by both sides of the political spectrum must be given due consideration. The scope of the effect of the decisions of European courts, issues of democratic values and the motivating theories of the purposes of justice and the penal system are of fundamental import. It is argued that the issue of prisoner voting falls outside the original intention of the drafters of the European Convention on Human Rights (ECHR) and hence it should not be considered to be a fundamental human right. Consequently, the UK should seek to renegotiate the terms of its commitment to the ECHR in order to repatriate sovereignty in this important area of public policy back to Westminster. The UK should go further and ensure a complete repatriation of powers in this area to all signatories of the ECHR. A Europe-wide repatriation of powers in this area has the significance of ensuring that a UK-only opt-out from certain treaty provisions will not undermine the UK’s commitment to the other provisions of the treaty. However, as a matter of practicality, the UK should comply minimally with the decisions of the European Court of Human Rights (ECtHR) and of the European Court of Justice (ECJ) by enfranchising prisoners who have committed crimes of a less serious nature to vote in the election before their release, this will ensure that no prisoner goes more than five years without having the right to vote. This statute should have a grandfather clause included in it to ensure a deadline on compliance resulting in pressure on the other signatories to the ECHR for a timely renegotiation. This has the effect of ensuring that the UK is not flouting its obligations based on the recent Delvigne decision handed down by the ECJ in October of this year. An important implication of this decision is that the UK’s indiscriminate ban on prisoner voting is not proportional and hence flouts the UK’s obligations under the ECHR. This is important as if the UK continues to disregard the decisions of the European courts, a detrimental effect on the enforcement of human rights in other countries who are signatories to the ECHR is likely to ensue.

In the recent case of Delvigne the ECJ conceded important ground enabling a restriction on prisoner voting rights under certain circumstances, this is conditional on the restriction on voting rights being proportional to the crime committed. If the UK wishes to continue its dogmatic approach to the provision of prisoner voting then at first glance it faces two options. Firstly, the UK could continue to show a blatant disregard for the rulings of the ECtHR and refuse to implement its decisions, however, this fundamentally undermines the effectiveness and legitimacy of the Court as an enforcer of human rights across Europe. Alternatively, the UK can choose to leave the ECHR (as many in the current conservative government advocate) however this is fraught with severe political and legal difficulties which make this an unattractive option, the details of which are beyond the scope of this article. It is the opinion of this author that the position of the UK as a beacon of morality for the enforcement of human rights would be fundamentally undermined if either of these options were to be followed. Consequently, the UK should in the first instance seek to renegotiate its commitments under the ECHR in this area in addition to advocating the universal removal of prisoner voting rights from the scope of the ECtHR’s jurisdiction as this was arguably not in the original intention of the drafters. This has important implications for the sovereignty of the Westminster Parliament and may have the additional effect of tempering anti-EU sentiment (it is noted that while the ECtHR is not part of the European Union, it is almost inconceivable that a country could be a member of one and not the other and hence the two institutions may be conflated). The legality of the human rights violations resulting from a continual rejection of the rulings of the ECtHR and ECJ at home and overseas, in addition to the alternative of becoming ‘Little Britain’ after a withdrawal from the ECHR and forming a British Bill of Rights would have the effect of Britain losing its moral influence in the international community and this is not something to be taken lightly.

There are two separate institutions which have a legal effect on the provision of prisoner voting under UK law which form a human-rights basis for claiming prisoner voting rights under the ECHR and an EU-law basis for claiming such rights. First, is the ECHR and the decisions of its Court, the ECtHR. This has been given effect in UK law by Section 2(1) of the Human Rights Act 1998 (HRA). Under this provision, the UK courts are not required to adopt the ECtHR’s interpretation of the Convention; the requirement is merely to take into account the Strasbourg (ECtHR) case law. And in fact, UK courts do not believe that their jurisprudence must invariably track precisely the Strasbourg or Luxembourg case law. This is evidenced by the jurisprudence of the UK’s Courts in cases such as Chester where the Supreme Court judges said there was no individual right to vote conferred under EU law in the way there is under human rights law.

The UK’s ban on allowing any prisoners to vote was deemed to be illegal by the ECtHR in October 2005 in the case of Hirst (No 2) v UK where the court found this to be in violation of Article 3 of Protocol No 1 of the European Convention on Human Rights. This related to the right to free elections. The decision of the court was that “a general and automatic disenfranchisement of all serving prisoners was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights.” In fact, in a series of cases including Hirst (No 2) v UK, Greens v UK and Scoppola v Italy, the ECtHR has held that such an indiscriminate ban is against the ECHR.

Lord Judge’s conception of status of the status of the ECHR – and, hence, of the Strasbourg jurisprudence (the decisions of the ECtHR) – within UK legal system leads him to the conclusion that the relationship between the UK Supreme Court and the ECtHR should not be conceived of in hierarchical terms: spheres of influence are not mutually exclusive. Circumstances can, and do, arise in which the Strasbourg Court renders an interpretation of the Convention that is at odds with the domestic courts’, including the Supreme Court’s, understanding of the Convention. There can be, and sometimes is, “dialogue” between the two courts in such situations, and it is not always the case that the Strasbourg view prevails. If, however, there is an irreconcilable difference of opinion, there must be some way of determining which view prevails. And there is. Article 46(1) ECHR says that: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” This does not, in and of itself, require domestic courts to fall into line with Strasbourg: but it does mean that if they fail to do so, then the UK will be in breach of an obligation that is binding upon it in international law. This outlines the current legal standoff between the UK Supreme Court and the ECtHR, as argued above; the status quo is unsatisfactory as it leaves the UK in breach of its treaty obligations. Consequently, based on the recent October 2015 decision of the ECJ in Delvinge it is submitted that a temporary change in UK law should be pursued in order that prisoners who commit crimes of a less serious nature face being disenfranchised to the extent that they can only vote in the general election before their release from prison. In the current scheme of things this would mean that no one serving less than five years would lose the right to vote. This will arguably have the effect of complying with the UK’s treaty obligations while a renegotiation is conducted, in turn this will ensure that the UK maintains its moral standing as a protector of human rights.

Overall, the author believes that the scope of the ECHR is too wide and has resulted in a fundamental loss of sovereignty. It is submitted that the right of prisoners to vote is not a fundamental human right and that each and every country must be allowed to democratically determine the nature of its criminal justice system in issues such as the one at hand. As a matter of practicality, the UK should renegotiate its relationship with the ECHR and should seek to have this provision removed from the treaty altogether, this will enable the UK to maintain its sovereignty in this area while maintaining the Europe-wide application of the ECHR, in addition to maintaining Britain’s place in Europe as a defender of human rights.

George Kestel, Law Editor