Prisoner vote law 'covers Scotland and Welsh elections'

Only prisoners on remand can currently vote

The government has been warned it must give prisoners in Scotland and Wales the right to vote in May's elections or risk compensation claims for allegedly breaking human rights laws.

Ministers had thought a ruling by the European Court of Human Rights would force them to give prisoners the vote only in Westminster or European parliamentary elections.

But giving evidence to MPs lawyers said the ruling applied to all elections that create a legislature, such as the Scottish Parliament, Welsh Assembly and the Northern Ireland Assembly.

The court has ruled that the UK's blanket ban on all prisoners voting was incompatible with the European Convention on Human Rights.

Last autumn the government agreed to give the vote to prisoners serving less than four years in jail. Ministers are now considering reducing that to one year in jail. They had planned to bring forward legislation by August.

In his written statement to Parliament on 10 December, the Cabinet Office minister Mark Harper said: "The right to vote will be restricted to UK Westminster parliamentary and European parliamentary elections only, and no other elections or referendums."

But Aidan O'Neill QC, a barrister expert in prisoners' rights, told the Commons political and constitutional reform committee that the elections to the Scottish Parliament and Welsh Assembly on 5 May would be covered by the court's judgement.

He said: "There are elections in May in Scotland and Wales. Those elections under the current franchise will be incompatible (with the European Convention on Human Rights) again. There is an urgency about this.

"Elections to the Scottish and Welsh parliaments are covered not only by human rights law but also EU law. There could be a whole new raft of arguments about the legality of those elections, and the possibility of compensation claims. In order to avoid that, something has to be done very quickly."

He added: "This is reaching crunch point now."

The plan to allow prisoners to vote has faced strong opposition from MPs.

Prime Minister David Cameron recently said giving inmates the vote made him feel "physically ill" - but warned that the government faced paying out more than £160m in compensation if it did not do so - a move which could be even more unpopular with the public than extending voting rights.

Many MPs want to make a stand against the Strasbourg court with the Commons having the opportunity to vote on the court's ruling next week when it debates a motion tabled by the Conservative David Davis and Labour's Jack Straw.

The prime minister is thought to accept that the Commons is unlikely to vote for a proposal that could involve granting the vote to up to 28,000 prisoners, including 6,000 jailed for violent crime, more than 1,700 sex offenders, more than 4,000 burglars and 4,300 imprisoned for drug offences.

The Scottish government, which "strongly opposes" prisoners being allowed to vote, insisted none would be given the right in May's Scottish elections because the timescale for a change in the rules "would simply not allow it".

Because the issue of voter eligibility is reserved to Westminster, any compensation claim made in Scotland would be dealt with by the UK government, said the Holyrood administration.

Also giving evidence to the committee were Lord Mackay of Clashfern, the former Conservative Lord Chancellor, and Dr Eric Metcalfe, from the human rights group Justice.

All three said the government's plans to give the vote to prisoners serving less than four years - or even less than one year - would still be incompatible with European human rights law, simply because they are blanket bans.

However, they said the ECHR would allow some prisoners to be deprived of the vote in some circumstances, particularly when it was an individual decision about an individual prisoner, related to their crime.

They suggested one solution for the government would be to allow individual judges to ban prisoners from voting when they are sentenced for their crimes. The ban would be part of the punishment for their crimes and within guidelines set down by the government.

Dr Metcalfe said: "If it is a blanket ban based on the convention of one year, that would have breached the rules which say there has to be individual assessments. A blanket ban of one year or twenty years is going to be against the judgement."

Mr O'Neill said: "The problem is the blanket nature of the ban and the lack of individual assessment... If you get the judge to make the decision about deprivation (of the vote) at the time of sentencing, and say why they're doing it, that's the way forward."

Lord Mackay suggested that another solution would be to give prisoners the right to vote when they become eligible for parole, as part of their rehabilitation.

"It is an important part of rehabilitation to give the vote back when they are going to rejoin society" he said. "This is a possible way of dealing with the matter."