In November 2012 the Lord Chancellor published the Draft Voting Eligibility (Prisoners) Bill, and announced the establishment of a Joint Committee to conduct pre-legislative scrutiny.
At present the law in the United Kingdom is clear: all convicted prisoners are prohibited from voting in parliamentary, local or European parliamentary elections, for the duration of their detention. The draft Bill contains three options: options A and B would give the vote to all those serving sentences of less than 4 years or 6 months or less respectively; option C would re-state the existing complete prohibition on all convicted prisoners voting.
The Government brought forward the draft Bill as a result of the decision of the European Court of Human Rights in the 2004 case of Hirst v United Kingdom (No. 2). In that case the Court found that the UK's complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights.
Underlying our inquiry is a far-reaching debate about the United Kingdom's future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.
In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court's judgment for the UK's relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court's judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK's action as setting a precedent for them to follow.
We have also considered the implications of failure to comply with the European Court's ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.
In respect of prisoner voting itself, we have sought to present the arguments in a balanced and dispassionate way. In so doing we have reached the following conclusions on points of basic principle, which we hope will inform the continuing debate in Parliament and society:
- In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
- The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
- The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
- There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
- There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
- There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
- The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.
Taking all these conclusions into account, we recommend that the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.