Margin of Error: Government Proposals on Prisoner Voting Are Not Good Enough

So the Government may finally allow convicted prisoners to vote in elections albeit in very limited circumstances. It’s not clear from the reports the categories for whom the current ban will be lifted. Will it be those serving sentences of less than 12 months who happen to be outside prison on day release on the date an election happens to fall? Or will a more proactive scheme be introduced for enabling those short term prisoners who would be eligible for so called Release on Temporary Licence (ROTL) either to go out to a polling station or cast a vote in jail?  We’ll have to wait for the eventual proposal but either way it’s a tiny number who will be enfranchised. The leaked Government paper talks of hundreds (out of 86,000 prisoners) but it could be tens. Day release is seldom used for the 6,000 odd short term prisoners as things stand.

The idea presumably is to make a change significant enough to satisfy the European Court of Human Rights that their rulings in the Hirst case have been complied with; but so insignificant that Parliament and the public can swallow it, without in the case of the former Prime Minister regurgitating.

Will the strategy work? Dominic Raab, now a Justice Minister, thought six years ago that “giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg”. The apparently narrower offer now on the table – a sub-group of short sentenced prisoners- could presumably be thought more likely to fall outside the margin of appreciation allowed by the Court. But since 2011, the ECtHR has bent over backwards for the UK. It refused to allow prisoners to be compensated for their inability to vote in spite of its ruling that the blanket ban was unlawful. In controversial decisions too, it decided that the regime for whole life tariffs in England and Wales is compatible with the ECHR although in truth the scope for review and prospect for release in such cases are so limited that it is hard to see how the sentence is reducible or  gives a genuine right to hope.  The ECtHR also allowed extradition to a US Supermax prison described by a former warden as “a clean version of hell”. For what it’s worth I reckon that the court will be content with at least some move towards compliance, however token.

What about domestic reaction? In 2011 an overwhelming majority of MPs the supported the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. Those who voted for the status quo included Raab and his current colleagues in the MoJ Phillip Lee and Prisons Minister Sam Gyimah. The current Home Secretary and Solicitor General backed the motion put forward by David Davis and Jack Straw as did three other current Cabinet Ministers. If the new line is agreed by Government they would need to support it or resign. One of them, now culture minister Karen Bradley told parliament that she “was elected to be the voice of my constituents in this place, and many of them have contacted me to express their concern about the matter. They are firmly, to a man and a woman, against any move to give votes to prisoners, and I am wholeheartedly in agreement with them”.

While many Labour members voted to keep the ban, Jeremy Corbyn was a teller for the noes. His argument in the debate is surely the right one. “If we as a country are signed up to the European convention on human rights, ...and if the Court makes a judgment on the question of prisoners' voting rights within that convention, we are bound by that judgment, by treaty and by law”. 

The Government should legislate for a much more generous arrangement on prisoner voting than the pitiable offer  doing the rounds in Whitehall and bring to an end a  shameful episode for the rule of law.