Lord Phillips’ recent lecture at Oxford (entitled ‘The Elastic Jurisdiction of the European Court of Human Rights’) critiqued, inter alia, the application by the Strasbourg court of its long-standing ‘living instrument’ (Tyrer) ECHR interpretation to the treaty’s jurisdiction clause, Article 1 (Al Skeini, contra Bankovic).

Lord Phillips highlighted the UK’s 8.5 year breach of its binding  international obligation to abide by the Grand Chamber’s Hirst (No. 2) judgment and amend section 3 of the Representation of the People Act 1983 which currently disenfranchises all serving prisoners in all types of elections, including this May’s European Parliament and local elections.

Reflecting on his tenure as a member of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Lord Philips contended that, in the course of deliberations, it became apparent (to him) that ‘the question of whether some prisoners should get to vote was of comparatively minor significance’. Describing the Committee’s recommendations to amend UK legislation so that all prisoners serving sentences of 12 months or less should be entitled to vote, he opined: ‘would it really be earth shaking to give some short term prisoners the right to vote, which most of them would not bother to exercise?’ This blog addresses this seemingly causal approach to (dis)enfranchisement.

In a speech delivered at Georgetown University the day before Lord Phillips’ lecture, U.S. Attorney General Eric Holder stressed the fundamentality of the right to vote in the light of vestiges of racially motivated disenfranchisement legislation in some American States. Holder’s call was echoed by a New York Times editorial, which noted that over 6 million Americans, more than 2 percent of the otherwise eligible voting population, is currently disenfranchised. Fortunately, the number of disenfranchised persons in England and Wales is far lower (65,963 on 30 September 2013); nonetheless, ‘the vote of each and every citizen is a badge of dignity and of personhood’.

The fundamental nature of an individual prisoner’s right to vote does not depend on its exercise by all right-holders; its significance lies in the knowledge and awareness that one is a right-holder. Indeed, the claim that prisoners are not interested in voting is reminiscent of arguments made in the nineteenth century against the extension of suffrage to women. In Sauvé (no. 2) v Canada, the Canadian Supreme Court quashed legislation disenfranchising prisoners serving sentences of over 2 years. While justifying disenfranchisement, Justice Gonthier’s powerful dissent acknowledged that ‘being temporarily disenfranchised is clearly a significant measure, which is part of the reason why it carries such great symbolic weight’.

Even if serving prisoners are indeed less likely to vote than the general population (data from Israel [Hebrew] suggests otherwise), prisoners will have probably developed their disinterest or disillusionment with the political system before entering prison. Rather than lead one to dismiss the significance of voting for prisoners, low turnout should mobilise political elites to assume responsibility for furthering civic engagement. Indeed, ‘the right to elect legislators in a free and unimpaired fashion is a bedrock of the political system’.

The Scottish Independence Referendum (Franchise) Act gives rise to several franchise-based legal challenges, inter alia the exclusion in section 3 of all serving prisoners from participation in the 18 September 2014 referendum. The provision has recently withstood judicial review in the Court of Session Outer House’s judgment in Moohan, Gibson, and Gillon. Lord Glennie’s judgment relied, inter alia, on the ECtHR ruling in McLean and Cole v. UK, which interpreted Article 3 of Protocol 1 to the ECHR (A3PI) to be inapplicable to the exclusion of UK prisoners from participation in the ‘Alternative Vote’ referendum. A3PI refers to ‘free elections… which will ensure the free expression of the opinion of the people in the choice of the legislature’. Notably, however, the ECtHR has never considered a claim about denial of voting rights in an independence referendum, which arguably concerns ‘the choice of the legislature’ in the sense of which parliament is to enjoy sovereign authority in Scotland in the post-referendum era. If and when the Court of Session judgment reaches Strasbourg, a ‘living instrument’ interpretation of A3P1 may plausibly ensue.

Elsewhere, I have made the case for letting prisoners vote; I have also lamented the flimsy protection that the recent Supreme Court judgment in Chester and McGeoch provides for the right to vote in the UK constitutional order. It is high time to start taking the right to vote seriously.