After a final ruling by the European Court of Human Rights, the UK government is believed to be planning a draft bill that will introduce limited voting rights for prisoners despite widespread opposition to the move in the legislature. The announcement of the draft bill is expected to be deferred until just before a late November deadline but after the November 17 election for police commissioner.
All judgements made by the European Court of Human Rights are binding and member states are expected to abide by their judgements or face penalty, usually monetary. If Britain fails to change their prisoner voting laws, they could face a fine amounting up to £150 million.
While answering questions at the Common justice committee on October 25, UK Attorney General Dominic Greive said that if the UK did not abide by the European Court’s decision, the country could technically be thrown out of the Council of Europe.
Tory member of Parliament (MP) Dominic Raab, however, disagreed. The Guardian reported that Raab believes there is little danger of the UK being fined by the European Court should they fail to change prisoner voting laws and that there is no chance that the UK will be thrown out of the Council of Europe.
The issue in question, whether or not prisoners should be given the right to vote, has a long history in Europe. The current laws have been in place for 140 years and dictate that prisoners do not have the right to vote.
The general sentiment in the House was expressed by Tory MP David Davis when he argued against reforming the laws stating, “if you break the law, you cannot make the law” during a recent debate.
The Economist reports that Prime Minister David Cameron has gone on record in the House stating, “I don’t see any reason why prisoners should get the vote. This is not a situation I want this country to be in,” while The Telegraph reports that Prime Minister Cameron has stated that it would make him sick if prisoners got the right to vote.
The lines are clearly drawn in the sand with MPs overwhelmingly against prisoner voting laws, passing a motion supporting the current laws by 234 to 22 in February 2011. But is the law outdated? And are prisoner voting rights indeed rights that should be granted?
What do other Western legal systems say?
Historically and almost overwhelmingly, other Western legal systems have denied prisoners the right to vote. Only relatively recently – within the last twenty years or so – have legal systems been reformed to include provisions for prisoner voting.
In 1999, the Supreme Court of Canada ruled that it was unconstitutional to deny prisoners the right to vote. A report by Elections Canada states that the court found that the laws, “did not meet the minimum impairment and proportionality tests” and that: “disenfranchisement does not increase democratic respect because it denies individuals’ inherent dignity.”
In the United States, prisoner voting rights are under state jurisdiction and vary state to state. All states except for Maine and Vermont prohibit felons from voting while still incarcerated. Once released, there is a combination of provisions under which felons have the right to vote, including parole and probation. Virginia and Kentucky are the only two states that completely ban prisoner voting and continue to disenfranchise felons after their release from prison. Reinstatement of voting rights can only be granted by the governor or by completing a restoration process, which involves completing an application and depending on the type of crime, may require being released from supervised probation for a minimum of five years.
A 2010 landmark case that a former prisoner, John Hirst, won against the British government prompted Britain to reexamine their prisoner voting laws. The European Court of Human Rights ruled that blanket prohibitions on prisoner voting rights that barred Hirst from voting were illegal. After the judgement was made, the Council of Europe issued Britain a warning to: “rapidly adopt measures, of even an interim nature, to ensure the execution of the court’s judgement.”
Britain stands apart from many other members of the Council of Europe. Countries such as France, the Netherlands, the Czech Republic, Denmark, Poland, Sweden, and Germany all allow prisoners to vote. In fact, most democracies either allow prisoners to vote or allow ex-convicts to vote, though they reserve the power to abrogate these rights if a person is convicted of electoral fraud. Is Britain then behind the times with regards to the rights of prisoners?
Prisoner disenfranchisement as a larger issue?
Britain’s hostile response to the Court’s ruling brings to light an issue of legal jurisdiction: is the European Court of Human Rights infringing on Britain’s national sovereignty and right to self-determination?
After the initial ruling in 2010, a Ministry of Justice spokesperson told The Guardian that, “it remains the government’s view that the right to vote goes to the essence of the offender’s relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. The issue of voting rights for prisoners is one that the government takes very seriously and that remains under careful consideration.”
Similar sentiments have been expressed by MPs recently, though perhaps somewhat more vehemently. MP Zach Goldsmith recently tweeted: “MPs almost unanimously rejected votes for prisoners. If it happens all the same, does that mean the UK Parl officially no longer matters?”
While Goldsmith does not explicitly refer to notions of state sovereignty and supranational non-interference in domestic affairs, he certainly implied they are at issue. In fact, notions of sovereignty have been on the minds of other government officials in light of the Court’s ruling on Britain’s final appeal.
Greive recently told MPs that: “the United Kingdom government is adherent to the convention. The convention is one of our international legal obligations. And successive governments, including this one, have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly … We do observe international obligations that are imposed on us.”
Greive appears to be acknowledging that membership in international organizations entails surrendering a certain amount of sovereignty to these organizations, lest they become “a pariah state.” That being said, he also admits that Parliament can choose to ignore the ruling.
“It is entirely a matter for Parliament ultimately … to determine what it wants to do,” he said. “Parliament is sovereign in this area. Nobody can impose a solution on Parliament.”
What are Britain’s options?
Ignoring the ruling will result in fines by the European Council and will probably result in international embarrassment. The government was already embarrassed by being found to be in violation of universal suffrage rights. While theoretically Britain could be removed from the Council of Europe, it is difficult to predict whether or not this will happen because there is no precedent for it. Additionally, the member states of Russia, Ukraine, Serbia and Bosnia (among others) have been found in violation of human rights numerous times and yet still remain on the council.
If Britain ultimately decides to adhere to the Court’s ruling, they will have six months to implement electoral reforms, even if they are only provisionary in nature at first.
Juliet Lyon of the advocacy group Prison Reform has said that Britain should remove the ban on prisoner voting. She told The Guardian that: “the decision is profoundly embarrassing for the government and places on it a clear and urgent obligation to overturn the blanket ban on sentenced prisoners voting.”
Bob Cummings of the advocacy group Unlock echoes Lyon’s sentiment, stating: “giving prisoners the vote is a question of moral conscience not political conscience. If prisoners are excluded from voting, then we don’t have a democratic society – we are just paying lip service to one.”
But a decision to overturn the law may not be as simple as it seems. Britain has a rocky history with the European Court of Human Rights as it has previously blocked attempted deportations of suspected terrorists to their home countries where they may face torture. These past decisions have incited anger within the British population and have been seen by some as an example of the Court interfering in the country’s sovereignty.
The Economist underscores the centrality of the national sovereignty debate within the context of prisoner voting rights: “though this row is being presented as a push-back against absurd, politically-correct rulings and the horrid idea of prisoners voting, I think that the really revealing fury is centred on Britain’s submission to foreign judges. There is a real push underway, strongly supported by Conservative MPs and especially newly-elected Tories, to reassert Britain’s sovereignty in some way, any way possible.”
Britain has previously attempted to retain a certain amount of its sovereignty in light of the growing important of intergovernmental organizations (IGOs) like the European Union. Its refusal to adopt the Euro is proof of this mandate. However, increasing pressure from IGOs to adopt their norms and customs will challenge Britain, who will have to find a way to reconcile issues of sovereignty and norms of international law. One aspect that observers will be keen to watch for is whether or not this latest legal discordance will set Britain even further apart from the EU.