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)
Proportionality
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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