Last week, the UK government announced its intention to change the Prison Service Guidance so as to allow prisoners towards the end of their (less than one year) imprisonment sentence ‘on day release’ who are  still on the (annually updated) electoral register to vote in all UK elections. Prisoners would not be allowed to re-register whilst in prison. It would ’affect up to 100 offenders at any one time and none of them will be able to vote from prison’. The UK’s prison population is c. 86,000.

Crucially, the government plans no changes to section 3 of the Representation of the People Act 1983 (RPA), thereby avoiding a potential backbench revolt. The provision stipulates that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. Of the 47 members of the Council of Europe only Armenia, Georgia, Russia, Hungary, and Bulgaria have similar policies.

The announcement comes after more than 12 years of non-compliance with the binding judgment of the European Court of Human Rights in Hirst (no. 2) v UK, undermining the UK’s adherence to the rule of law. Elsewhere (full-length paper, blog-post), I set out the normative case for enfranchisement and critiqued Strasbourg’s timid approach. In previous posts (here, here, and here), I have discussed the unfolding of the prisoner voting saga.  This post considers the extent to which the proposal complies with Hirst.

It is noteworthy that, in December 2016, the Committee of Ministers of the Council of Europe (CoM), tasked with supervising the execution of judgments (pursuant to Article 46(3) of the ECHR), decided ‘to resume consideration of [Hirst] in light of the [UK] proposals [to be] submitted, at their 1302^nd meeting (December 2017)…at the latest’. The decision followed strongly worded reprimands in previous years.

It is worth quoting [82] of Hirst (no. 2) in full: ‘….section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1’. Hirst’s ratio was reaffirmed e.g. last year in Kulinski and Sabev v Bulgaria  (Fifth Section Chamber).

The proposal leaves section 3 of the RPA intact: at the time of sentencing, disenfranchisement would still be an automatic consequence of a sentence of imprisonment of any length, regardless of individual circumstances. Post-sentencing, enfranchisement will be discretionary, applying to roughly 1 in every 1000 prisoners. This is a far cry from the recommendation of the Joint Committee on the Draft Voting Eligibility (Prisoners) [239] ‘that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections’ and that all ‘prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released’.

Moreover, despite the Lord Chancellor’s claim that the proposal complies with the UK’s ‘international legal obligations’, the Human Rights Committee (interpreting the ICCPR) noted that ‘general deprivation of the right [to] vote for persons who have received a felony conviction…do not [sic] meet the requirements of Articles 25 [and] 26…nor [does it] serve…the rehabilitation goals of Article 10(3)’ (see also my full-length paper).

Will the CoM bite the bullet? Before the 2016 EU referendum, the then Home Secretary Theresa May intimated that the UK should (stay in the EU but) leave the ECHR. While Brexit put such plans on a low burner, the Conservative 2017 Manifesto (only) committed to ECHR membership ‘in this Parliament’. Even though denunciation of the ECHR would not release the UK from its existing obligations it would be an undesirable outcome which the CoM will seek to avoid.