Votes for prisoners: politics versus human rights law

• The European Court of Human Rights has repeatedly ruled that banning most prisoners from voting is a breach of their human rights
• Although the UK has promised to abide by the Court's decisions, nobody can force Parliament to change the law on prisoner votes
• The stalemate looks likely to continue for some time, but no compensation has ever been paid to a prisoner denied the vote

The debate over votes for prisoners is perhaps the most politically controversial human rights question of them all. The European Court of Human Rights has now ruled on four occasions that the UK is violating prisoners' rights by banning almost all of them from voting. The UK has not yet changed the law in response to these judgments, which go back over a decade.

A long saga

In 2001, three prisoners challenged the explicit ban on all prisoners—except those on remand and a few other minor exceptions—being able to vote in any parliamentary or local government elections. They claimed that the ban was a breach of the European Convention on Human Rights, but lost in the High Court.

The UK has ratified the Convention, and made it a part of domestic law through the Human Rights Act 1998. Under the Convention, countries promise to hold elections "which will ensure the free expression of the opinion of the people".

One of the prisoners, John Hirst, convicted of manslaughter in 1980, argued at the human rights court in Strasbourg that this rules out a 'blanket' ban on prisoner votes. In 2005, the Court's Grand Chamber agreed that it was.

Prisoners have rights too

Its judgment said that nobody "forfeits his Convention rights merely because of his status as a person detained following conviction" and ruled out "automatic disenfranchisement based purely on what might offend public opinion". The Court felt that there hadn't been "any substantive debate by members of the legislature" on whether a ban on all convicted prisoners voting was a measured way of "preventing crime" and "enhancing civic responsibility and respect for the rule of law".

The Grand Chamber concluded that the law is disproportionate: "a blunt instrument".

It didn't say that all prisoners should have the vote. It's up to the UK to find a way of changing the law so that it's in keeping with what the Convention requires. This could be done by making the law more selective; for instance, giving some prisoners the vote, but not others, depending on the length of their sentence or the nature of their crime.

Politically toxic result

None of the  three governments that have been in power since the ruling was made like it very much; but the UK has made a promise, in international law, to accept such judgments. Following the law means putting in place new legislation.

Different options for doing so have been discussed since 2005. In 2013, a parliamentary committee recommended that prisoners serving a sentence of 12 months or less should have the vote. The government responded in February 2014, saying that "the matter is under active consideration". The law went unchanged, perhaps due to the opposition of MPs and the general public.

Meanwhile, more prisoners have gone to the Strasbourg Court over the right to vote. A judgment in 2010 confirmed that the UK continues to be in breach of the Convention—but with no practical consequences other than to reiterate that the UK needs to take action. A further ruling to that effect in 2014 denied the prisoners both compensation and the costs of taking the case. No financial compensation has ever been given to any prisoner who cannot vote.

Déjà vu

In its most recent ruling, made in February 2015, the Court found in favour of 1,015 prisoners or former prisoners—but once again refused to pay compensation or reimburse costs as a result.

The government said in December 2014 that it would not legislate for prisoners' votes in this Parliament, meaning that there will be no change to the law before the general election in May. The Council of Europe's Committee of Ministers, which has been urging the UK to honour its international law commitments, will next examine the government's progress in September 2015. The stalemate continues.