Prisoner votes: a ping pong ball in a wind tunnel

10 February 2011 by

Updated | Parliament is currently debating on whether prisoners should be given the vote. The motion can be found here and you can watch the debate on Parliament TV.

A Washington Post correspondent recently said US President Barack Obama had been “bounding around like a ping-pong ball in a wind tunnel” on to the situation in Egypt. In many ways, the UK government has been doing the same on the 5-year-old judgment in Hirst v UK, in which, as has been endlessly repeated in the media, the European Court of Human Rights’ grand chamber ruled that the indiscriminate ban on prisoners voting breached Article 1 of Protocol 3 of the European Convention on Human Rights.

The background to this issue is that in the 2005 decision of Hirst (No. 2),the European Court held that Section 3 of the Representation of the People Act 1983, which prevents prisoners from voting, is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights. The court ruled that the total ban on prisoners voting was a “general, automatic and indiscriminate restriction on a vitally important Convention right“.

Under Article 46 of the European Convention of Human Rights, which the UK signed up to, obliges it to “abide by the final judgment” of the European Court of Human Rights. So, politicians who want to fight ruling are feeling a kind of buyers remorse.

This is not least because John Hirst of the Hirst judgment, a man convicted of manslaughter after hacking up his landlady with an axe, is hardly the kind of person MPs want to be seen as supporting. But, as Lord Neuberger pointed out in a speech this week

human rights and other aspects of our constitutional tradition can easily become taken for granted, as we become complacent. No-one should ever forget that the price of liberty is eternal vigilance.

In other words, human rights are not a pick-and-mix. The UK government signed up to the convention, and the jurisdiction of the European Court of Human Rights, because it did not trust itself to exercise “eternal vigilance” alone. No government ever has, which is why separation of powers  and division of labour exists between the courts and the executive.

In theory at least, the Strasbourg court represents a belief that the combined wisdom of many states with different but comparable social systems will be greater than the sum of its parts, and therefore have something valuable to add to the rights debate.

Of course, for this to work the central (whisper it, federal) court must be reliable and effective. Some say it is now too creaky to do its job properly. But as an idea it is surely valid, as it works on precisely the federalist, greater than the sum of its parts logic which informs many of the successful modern states and institutions, including the USA, the UN and the EU. And many of our basic protections – such as discrimination law – would not exist but for European integration.

Despite these lofty principles, the UK government has consistently delayed implementing Hirst No. 2, and the coalition, after initially promising to do so, is now being attacked by an unlikely combination of Jack Straw, the former justice secretary who launched no less than 3 separate consultations on prisoner votes, and David Davis, who otherwise has been a strong proponent of civil liberties.

I have dealt in detail with the likely outcome if the government fails to follow the European judgment. My view is that the £160m which the prime minister, amongst others, has warned the UK may have to pay out, is probably overblown.

The issue has also generated a wider debate over the place of the European Court of Human Rights, which at the very least is interesting from a constitutional perspective, and as Rosalind English pointed out yesterday raises some valid questions for both supporters and detractors of the European Convention.

Whatever the result of this evening’s vote, it should be remembered that it is non-binding on the government on the issue itself. But it will demonstrate whether MPs have the stomach for the proposed reforms.

What is to be done if MPs refuse to support the government? In an excellent post on the Head of Legal blog, Carl Gardner suggests the following solution:

allow any convicted prisoner to apply to the judge when sentenced to imprisonment to lift, in his or her case, the ban on voting in general elections to Westminster and the devolved national legislatures. There could be tough-sounding sentencing guidance telling judges to lift the ban only where absolutely necessary to comply with human rights.

But, as he also points out, this would be neither a clear or principled approach. The principled approach would be to comply with the judgment in a limited way which still reflects the spirit of Hirst No. 2, accepting that denying every prisoner the vote – even if they have committed the least serious crimes –  is a draconian policy which is out of step with the rest of Europe.

If Parliament then wants to review the wider relationship with the European Court of Human Rights, or complain about the quality of its justice, then this will be an interesting debate for another day.

But MPs may ultimately privilege existing voters, who have never heard an attractively put case for complying with Hirst, over ones which do not yet exist. Perhaps if the prime minister had shown full blooded support for reform rather than saying it made him feel sick, MPs would be more willing to embrace the change. No doubt the ping pong ball has plenty ground to cover before this debate is over.

Update 11 Feb 2011 – MPs backed a motion opposing the move by a 234 to 22 – a majority of 212. Also, see this excellent and thoughtful article by the Economist’s Bagehot on the issue.

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  1. S,Legreer says:

    Here we all go again; much talk, & no action. Prisoners are there because of their own bad behaviour; if the state puts them away, then the state decides their `rights`!”

  2. You can read my own rambling and possibly ill-considered views on the subject at my own blog: see Prisoner voting: just get over it (and other random thoughts).

  3. Libertarian says:

    @ObiterJ ~ As I understand it this country is bound by treaty to implement ECHR, which in turn essentially means ECtHR case law, so the decision has (more or less) already been taken as far as broad criteria are concerned ~ hence Hirst 2. Subsidiarity, surely, is limited to the setting of appropriate sentencing guidelines.

    What the trial judge would be called upon to decide is simply whether in the case of the conviction upon which he is passing sentence deprivation of voting rights is proportionate to the circumstances of the case.

    Clearly, for example, an ex-MP, convicted of embezzlement/fraud whilst in a position of trust would fall fairly and squarely into the proportionately deprivable bracket. Similarly, a corrupt contractor who offers or pays bribes to government employees might (depending upon the circumstances of the case) be considered to have corrupted the democratic process and also be deprivable, whilst persons whose offences (non-payment of TV licences, motoring offences etc) have no bearing upon electoral matters would not.

  4. ObiterJ says:

    @ Libertarian – if British trial judges were to be empowered to decide which convicted person will have the vote and which not then I merely ask by what criteria will these decisions be made. It cannot be an arbitrary exercise otherwise, as I say, you will have endless appeals.

  5. Libertarian says:

    @Corrupted Mind (love the nom de plume!)

    Entirely agree your comments except perhaps yours @Obiter.

    In acceding to ECHR and enacting ECA and HRA surely Parliament has already delegated decision on the detail of the interpretation and implementation of its sovreignty to “other” (ECJ/ECtHR?) judges, further reinforced by the Lisbon treaty.

    Alternatively, if sovreignty is itself a creature of the Common Law and not merely the unilateral arrogation by Parliament of the Divine Right of Sovreigns, then surely the judges already have the power of decision? (Just a thought: the former would make the chopping-off of Charles Stuart’s head a bit unprincipled and tawdry to put it mildly.)

  6. Corrupted Mind says:

    The entirely strange thing is the way the debate has been focused almost entirely on violent and sexual offenders ignoring the majority of offenders who are guilty of lesser offenders. (see: HC Deb 21 December 2010 c1166W for prisoner breakdown) Some 3,000 individuals guilty of motoring offences surely some of those ought to be enfranchised in some way.

    Quick correction, were it not for the Republic of Ireland, the position in the UK would be matched only by a clutch of eastern european countries, Russia and the CIS, hardly a ringing endorsement. (source:

    Not forgetting how absurd it would be for Parliament to say:

    “Parliament is sovereign in the matter of prisoner voting and we ‘sovereign-ly’ decide to allow another set of judges to decide this matter”.

  7. ObiterJ says:

    Judges to decide? OK – on what basis? That seems to me to be a recipe for endless appeals etc.

  8. s.Legree says:

    Ridiculous; human rights are earned;-or forfeit.
    Prisoners forfeit there freedom-including voting rights.
    Other E.U. countries, Italy & Poland for two, refuse votes for prisoners.
    So can we; do you want their `rights` to include a key to the cell doors, perhaps?

    1. Stephen says:

      @s.Legree. I don’t agree

  9. Libertarian says:

    Carl Gardner’s idea of each prisoner having to apply to the trial judge for his vote is maybe putting the cart before the horse.

    Perhaps it would be more in conformity with ECHR if each prisoner were to keep his vote, but to add to the list of penal sanctions the potential suspension of his right to vote for a specified part (or all) of his term. Appropriate sentencing guidlines would permit trial judges to assess the art. 8 aspects in detail in their judgments and deprive appropriate prisoners of their right to vote on proportionate grounds.

    Frankly, as Mr Wagner stated in his earlier post, the whole issue is essentially a storm in a teacup as the numbers of prisoners who might be expected to exercise their right to vote would at most be minimal.

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