Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents

Conclusions and recommendations

The history of prisoner voting and the European Convention on Human Rights

1.  The European Court of Human Rights has not provided the United Kingdom with specific guidance as to what is considered necessary for compliance with Article 3, Protocol 1 of the European Convention on Human Rights. Having identified that the current prohibition on convicted prisoners voting breaches the right to vote, the Court maintains that it is up to the UK to make use of its margin of appreciation to find a solution that reflects national circumstances, while complying with the fundamental principles set out in the Court's judgments. (Paragraph 59)

2.  We note that the Court's approach has developed unpredictably in recent years. We also note the concerns expressed by some witnesses over the "living instrument" doctrine, and the uncertainty implicit in that doctrine. (Paragraph 60)

3.  With these provisos, we derive the following conclusions from the Court's recent jurisprudence:

  • A measure disenfranchising all convicted prisoners in detention is not considered to be acceptable, and any modified prohibition, if it is to satisfy the European Court of Human Rights and avoid being seen as "automatic and indiscriminate", will have to be seen to discriminate between less serious and more serious offences and may be expected to have some regard to individual circumstances.
  • The Court has partially retreated from the position that appeared to be adopted in Frodl v Austria, that the decision on prisoner disenfranchisement must be taken by a judge; nor does there need to be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement. (Paragraph 61)

4.  The unfreezing on October 2013 of 2,354 cases on prisoner voting by the European Court of Human Rights, due to the United Kingdom's failure to implement the decision of the Court in the case of Hirst v United Kingdom (No. 2), means that finding a resolution to this issue has become particularly pressing. We are concerned that, at a time when this Joint Committee is actively considering legislative proposals responding to the ECtHR's judgment, the Court should have seen fit to re-start judicial proceedings. (Paragraph 62)

Parliamentary sovereignty and the European Court of Human Rights

5.  We agree with the evidence of Lord Mackay of Clashfern, that the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights. (Paragraph 111)

6.  Parliament remains sovereign, but that sovereignty resides in Parliament's power to withdraw from the Convention system; while we are part of that system we incur obligations that cannot be the subject of cherry picking. (Paragraph 112)

7.  A refusal to implement the Court's judgment would not only undermine the international 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 may draw on such an action as setting a precedent that they may wish to follow. (Paragraph 113)

Is there a rational basis for disenfranchisement?

8.  We do not believe the distinction between fundamental and civic rights to be helpful in considering the issue of prisoner voting. In a democracy all citizens possess a presumptive right to vote, thereby having a say in the making of the laws that govern them. The existence of such a right is the necessary corollary of universal suffrage. This conclusion holds good regardless of the decision of the European Court of Human Rights in Hirst v the United Kingdom (No. 2). (Paragraph 155)

9.  It follows that the vote is a right, not a privilege: it does not have to be earned, and its removal without good reason undermines democratic legitimacy. The right to vote is a presumptive right, not an absolute right: democratic states may restrict the right to vote in order to achieve clearly defined, legitimate objectives. (Paragraph 156)

10.  We consider that the case for depriving prisoners of the vote as a part of their punishment is weak. It is possible that disenfranchisement could fulfil a retributive function, but no assessment of the effectiveness of disenfranchisement in this regard appears to have been undertaken. (Paragraph 157)

11.  A case has been made that reinstating prisoner voting rights, in whole or in part, could contribute to rehabilitation, though this is not in itself a strong enough argument to justify a change in the law. (Paragraph 158)

12.  The justification of the disenfranchisement of convicted prisoners as a symbolic act, which enhances civic responsibility and reflects the consequences of failure to respect the laws made by the community as a whole, is, in our view, the strongest that has been advanced in the course of our inquiry. We consider in Chapter 7 whether the current prohibition is a proportionate means to achieve this legitimate aim. (Paragraph 159)

Practicalities of disenfranchisement and re-enfranchisement

13.  For those prisoners sentenced to short terms of imprisonment, who make up a large majority of those sentenced each year, the chance that their period of detention will coincide with an election is small: whether or not the current ban on prisoner voting results in any particular individual losing the ability to vote is substantially a matter of chance. (Paragraph 189)

14.  In the absence of good quality data on the offences committed by the prison population, it is difficult to assess the types of prisoners who would be affected by Options 1 and 2 in the draft Bill. (Paragraph 190)

15.  We have heard no evidence that suggests the implementation of a process to allow a number of prisoners to vote would be difficult for the Prison Service to administer. (Paragraph 191)

16.  In the event that some prisoners are enfranchised, we would support the Government's preferred approach of enabling prisoners to vote either in the place of previous residence, or by means of a declaration of local connection, rather than in the constituency in which they are detained. (Paragraph 192)

17.  There is little evidence regarding the number of enfranchised prisoners who would actually vote. Experience in Ireland suggests that the numbers will be small, possibly no more than 1 in 10. (Paragraph 193)

18.  We therefore conclude, on the basis of the small numbers likely to vote, and the Government's approach to prisoner registration, that neither Option 1 nor Option 2 would have a significant bearing on the outcome of future elections. (Paragraph 194)


19.  The test of proportionality requires, in our view, that the punishment (disenfranchisement) should be a proportionate means of achieving the aim of sanctioning the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law. This requires that the punishment should "fit the crime". (Paragraph 223)

20.  We do not believe that it is feasible to require judicial consideration of the possible loss of voting rights in each individual case. Judges already take full account of the particular facts of each case in passing sentence, and we see no case for duplicating this complex and laborious task in respect of voting rights. (Paragraph 224)

21.  We do not consider that linking loss of voting rights to specific offences seen as undermining the fabric of democratic social order, while allowing those convicted of the most heinous crimes, including murder, to retain the vote, would be acceptable to public opinion or to Parliament. (Paragraph 225)

22.  Sentence length, though arguably a rudimentary measure, remains the best indicator of the seriousness of each individual offence, and thus the best means of determining the point at which the prohibition on prisoner voting should take effect. (Paragraph 226)

23.  On balance, if some convicted prisoners are to be enfranchised, we find the arguments for a 12-month threshold, reinstating the pre-1967 position and bringing prisoner voting rights into line with their existing right to sit in or stand for election to the House of Commons, more persuasive than those advanced for either a 6-month or a 4-year threshold. (Paragraph 227)

24.  We believe that allowing prisoners to regain the right to vote as they approach the end of their sentence, by showing that the loss of the right to vote is supplemented by measures promoting prisoners' reintegration into society, would assist in demonstrating the proportionality of whatever approach is adopted to prisoner disenfranchisement. (Paragraph 228)

The way forward

25.  We recommend that the Government bring forward a Bill, at the start of the 2014-15 session of Parliament, to give legislative effect to the following conclusions:

  • That all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections;
  • That such prisoners should be registered to vote in the constituency where they were registered prior to sentencing; and that, where there is no identified prior residence, they should be able to register by means of a declaration of local connection;
  • That prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released. (Paragraph 239)

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Prepared 18 December 2013