Prisoner voting in the UK and Scotland – rights vs political reality

Are prisoners allowed to vote in the UK?

Although changes are in the pipeline, in the UK the answer is currently ‘no’. UK legislation (the Representation of the People Act 1983) bans almost all prisoners from voting. In addition, although the Scottish Parliament now has devolved powers over who can vote in local and Scottish Parliament elections (including prisoners), it has yet to use these powers.

The legislation may be clear, but the issue of voting rights for prisoners has been an area of political controversy in the UK for more than a decade.

The controversy started with the voting ban being challenged in the European Court of Human Rights in Strasbourg in the ‘Hirst’ case.

In 2005, the Court held that the ban breached the rules on free elections in the Council of Europe’s European Convention on Human Rights.

The legal issue for the Court wasn’t the ban itself but the fact that it applied automatically to all prisoners, irrespective of the nature of their offence or their individual circumstances.

The Court concluded that it was not appropriate to propose a remedy as Council of Europe states deal with prisoner voting in different ways. Instead, it was up to the UK to consider how to comply with the judgment.

How did successive UK governments respond to the Hirst case?

The Hirst case was the start of a long political saga in which a series of UK governments consulted on ways to give prisoners the vote, before either being unable or unwilling to change the law in order to comply with the judgment.

Domestic politics clearly played a role in the UK’s refusal to comply with the Convention.  This stance was epitomised by the then Prime Minister David Cameron who stated in 2010 that the idea of votes for prisoners made him, “physically ill.” The issue also became a totemic one in the larger UK debate about whether the Court of Human Rights should be allowed to overrule the UK Parliament.

Until recently the Council of Europe and the UK Government remained at loggerheads.

It therefore came as a surprise to many when the Council’s Committee of Ministers – the body which ensures compliance with the Court’s judgments – agreed to new UK proposals for complying with the Hirst judgment in December last year.

The proposed changes are, however, very minimal in scope. Instead of new legislation granting voting rights to prisoners, they only envisage changes to prison rules (in conjunction with the devolved administrations). This would mean that prisoners who are already in the community on temporary licence (a form of discretionary parole), can vote.

The UK Government has stated that the changes would give approximately one hundred offenders the right to vote. No-one would actually be released in order to vote, though.  It would only affect prisoners who are on the electoral roll and who happen to be on temporary licence (or the devolved equivalent) during an election.

The Committee of Ministers’ decision emphasises that the UK’s proposals are an adequate response to Hirst since states have a wide degree of discretion in this area. It seems though that political motives may also have played a role. For one, the UK’s refusal to comply with Hirst has been used by countries such as Russia and Turkey as a ground to also ignore Court judgments, arguably damaging the status of the Convention in Europe. For the Council of Europe, a compromise where the UK makes minimal changes may therefore be a price worth paying given the bigger political picture (see article in the Guardian).

Scotland – devolution of powers

The Scottish Parliament could have given prisoners the vote in the 2014 Scottish Independence Referendum, as it was granted powers over the franchise for the referendum. However, it decided not to do so. In June 2013, the then Deputy First Minister, Nicola Sturgeon stated in a debate on the Scottish Independence Referendum (Franchise) Bill that:

“The principle that a convicted prisoner loses certain rights for the duration of their custodial sentence is a fundamental and long-standing part of the prison process.”

With the exception of the independence referendum, up until recently the UK prisoner voting ban had little relevance for Scottish politics, as the rules on the electoral franchise were reserved to Westminster.

The rules on who can vote in local elections and elections to the Scottish Parliament were, however, devolved in 2017 as a result of the Scotland Act 2016, thus putting the ball back in Scotland’s court.

The 2016 Act also set up new “super-majority” rules for electoral law issues. A prisoner voting bill would, therefore, need a two-thirds majority in the Scottish Parliament to become law.

Scottish Parliament Equalities and Human Rights Committee inquiry

The devolution of powers over the franchise led the Scottish Parliament’s Equalities and Human Rights Committee to start an inquiry into prisoner voting in June 2017. The Committee held two evidence sessions with a range of interested parties.

The Committee’s report, published in May 2018, found that all prisoners should be allowed to vote in local and Scottish Parliament elections (the Committee’s Conservative Members dissented from this conclusion). The report emphasised that consultation with a wide range of stakeholders would be essential.

What next?

The Scottish Government has yet to respond formally to the Committee’s report. However, during First Minister’s Questions on 17 May, the First Minister, Nicola Sturgeon, stressing the rights of victims, stated that she does not support the enfranchising all prisoners, but that there should be a full debate on the proposals.

It remains to be seen what changes will be made in Scotland to prisoner voting rules. There will have to be changes to devolved prison rules to comply with the Council of Europe’s decision. And the Scottish Government will be able to diverge from Westminster as regards the rights of prisoners to vote in local and Scottish Parliament elections.

However, judging by the First Minister’s initial comments, it seems likely that in Scotland the human rights issues will also come up against domestic political concerns.

Angus Evans

Senior Researcher, Justice Health and Social Affairs Research Unit

Image source: currentaffairs.org