Prisoner voting in Wales: devolved autonomy and human rights at the jagged edge

Abstract

In light of recent contestation between the UK Government and devolved institutions over legal human rights protections, this article examines the acute challenges that arise in the Welsh context for the implementation of article 3 of the First Protocol to the European Convention on Human Rights (ECHR), namely the right to free and fair elections. The European Court of Human Rights has held repeatedly that a blanket prohibition on convicted prisoner voting is a violation of the ECHR. Following the devolution of competences over devolved and local elections, the fundamental question for Wales is not merely whether prisoners should get the vote, but how a more progressive policy can be delivered within the current structures of Welsh devolution. We argue that the Welsh Government’s proposals for reform – partial enfranchisement based on sentence length – will be conditioned and undermined by criminal law and sentencing policy over which it has no control. Meanwhile, other options are either beyond devolved competence or entirely contingent upon the cooperation of a UK Government which opposes prisoner enfranchisement. In tackling these issues, we aim to demonstrate the profoundly limited nature of ‘devolved autonomy’ in an area ostensibly within the competence of Welsh institutions. The case study of prisoner voting thus brings into focus the unique and significant limitations on Welsh devolution and the considerable scope for complexity at the intersection of devolved governance and international human rights obligations.