Which Prisoners Can Vote on December 12th?

December’s General Election will be the first since the UK settled the prisoner voting cases in the European Court of Human Rights. In the Hirst group of cases, the Court found that the blanket, automatic restriction on all convicted prisoners voting in parliamentary elections violated Article 3 of Protocol No. 1 to the European Convention on Human Rights which requires that elections ensure the free expression of the opinion of the electorate in the choice of the legislature. After years of toing and froing, in November 2017 then Justice Secretary David Lidington somehow managed to satisfy the Council of Europe that some very minimal administrative reforms brought the UK into compliance. So where do these leave prisoners’ rights to vote next month?

As before the Hirst cases, remand prisoners (both untried and convicted but unsentenced) will be eligible to vote- there were 9,512 at the end of September 2019. So too will those subject to suspended sentences of imprisonment (about 40,000), prisoners released under Home Detention Curfew (2,809 at the end of last week) and civil non-criminal prisoners detained for matters such as non-payment of council tax or contempt of court. There were 850 non- criminal prisoners at the end of September, but the figure includes people held under the Immigration Act who do not qualify to vote.  The 50 odd fine defaulters in jail are also be able to vote if they wish.

The new group of prisoners who are eligible to vote following the Hirst settlement are those on temporary release from prison- so called ROTL.  Lidington told the Commons in November 2017 that he expected the change to affect up to 100 offenders at any one time, but the basis of the estimate is not clear. In the fourth quarter of 2018, there were almost 99,000 “incidences” of release on temporary licence- involving 4,283 individuals.  On the face of it Lidington’s, estimate looks on the low side.

So will all prisoners subject to ROTL on 12 December be able to vote? To do so they will of course have to register by 26th November. Lidington told MPs that any prisoner wishing to vote would have to satisfy the conditions for registration at a genuine home address. He said that they would not be able to register at the prison and seems to have ruled out registration in a constituency where the prisoners has lived previously, following a “declaration of local connection”. These two modes were available to prisoners eligible to vote pre-Hirst but appear not to be for the ROTL prisoners. Lidington told a fellow Tory MP that he thought it unlikely in the extreme that anybody serving a long sentence could demonstrate in practical terms that they had a continuing home residence other than a prison.

This may explain why the number of prisoners on ROTL who will be able to vote is estimated to be so small. It explains too the puzzling claim in the Government’s report to the Council of Europe that the prisoners who will be eligible “are primarily, as in other countries, prisoners who are serving short sentences”.  ROTL is mainly used in Open Prisons where 80% or more of prisoners are serving sentences of more than 4 years. On the face of it, it’s only a very rare bird- a short term prisoner on ROTL -who will in practice be able to vote thanks to the Hirst judgement.  

Guidance was sent to Prison Governors last year about the new arrangements – which I have not seen so I may have misunderstood what has happened. It's quite possible that once MPs had been placated, a more sensible set of arrangements have been put in place under the radar. But there seems to be no revision to the Prison Service Order on Prisoner Voting Rights. In the absence of proper scrutiny of the new system, the suspicion must be that the government can say that their policy is that those on ROTL will no longer be barred from voting while implementing it in a way that continues a de facto ban. Expect another case in the European Court before too long.