Jailhouse rock

The announcement that sentenced prisoners will be given the right to vote simply represents a case of the government bowing to the inevitable. As Mark Harper, the minister for constitutional affairs, correctly stated: 'This is not a choice, it is a legal obligation.'

Nonetheless, it is disappointing that ministers appear to be competing with each other to distance themselves from the announcement and its consequences. It is also somewhat dispiriting, albeit revealing, for ministers to state that the main reason for taking action now is to fend off legal action from disenfranchised prisoners.

Prisoners form part of our society. The right to vote emphasises to prisoners that, despite their imprisonment, they have a continuing stake in society. It is important in a democracy that those elected are accountable for their actions to their electorate and that the electorate is as large and representative of society as possible. Therefore, enfranchisement is beneficial not only to prisoners themselves but also to democratic society more generally.

No action

Unfortunately, the government only has itself to blame for being in this mess. As far back ago as October 2005, the European Court of Human Rights declared, in the case of Hirst v UK, that the ban on all sentenced prisoners in the UK from voting represented a breach of human rights.

The last government, however, was glacially slow in taking the necessary steps to give effect to the judgment. The government had a whole parliamentary term to bring forward a lawful system of voting. Instead, because of their political sensitivities, they delayed and prevaricated in making this legally important, but politically unpalatable, decision.

The government simply embarked on two lengthy public consultations, which many commentators saw as little more than a delaying tactic. This inaction drew intense criticism. The Committee of Ministers of the Council of Europe expressed repeated criticism and went as far as passing an interim resolution in December 2009 warning that, unless action was taken, there was a significant risk that the then upcoming general election would be performed in a way that breached the European Convention on Human Rights.

The belated acceptance by the current government that they have been acting unlawfully and their commitment to rectify the situation is welcome. Nonetheless, whatever the government does now, serving prisoners were prevented from voting at the general election and are entitled to compensation for this breach of their human rights.

Another mistake

It will also be important to critically examine what proposals for reform are now put forward by the government. While nothing has yet been published, during a hearing in the Court of Appeal last week the government appeared to indicate that it was considering restricting the right to vote to only a proportion of prisoners. If correct, this could prove to be another costly mistake.

In a recent judgment upholding a claim brought by an Austrian prisoner, the ECtHR emphasised that the right to vote should only be denied to prisoners in exceptional situations where the offence relates to an abuse of a public position or threatens to undermine the rule of law. Put another way, there needs to be a direct link between the offence and the decision to disenfranchise. Earlier this week, an application by the Austrian government to appeal the judgment was refused.

It therefore seems that any more limited proposals for reform implemented by the government would be unlikely to fully address the breach and would almost inevitably lead to further legal action.