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Overview

In 2005 the European Court of Human Rights (ECtHR) ruled that the UK was in breach of Article 3 of Protocol No 1 of the European Convention on Human Rights in relation to prisoner voting rights. The issue remained unresolved for over a decade. In December 2017 the UK Government came up with proposals that the Council of Europe said were sufficient to signify compliance with the 2005 ruling. The Council finally closed the case in September 2018.

The responsibility for local and devolved elections in Scotland and Wales, including the franchise for those elections is now devolved.

This briefing gives a summary of events before May 2015 and examines the debate since May 2015. For more detail of events before 2015, see Commons Library’s standard note Prisoners’ voting rights (2005 to May 2015).

The ban

Currently under UK law prisoners serving a custodial sentence after conviction cannot vote in any elections. The current provisions are set out in Section 3 of the Representation of the People Act 1983. This ban does not apply to prisoners on remand.

The disenfranchisement of prisoners in Great Britain dates back to the Forfeiture Act 1870 and was been linked to the notion of ‘civic death’. The 1870 Act denied offenders their rights of citizenship.

The challenge

In 2001 the ban was challenged by three convicted prisoners. The domestic courts rejected the challenge and one of the prisoners, John Hirst, then took his case to the ECtHR.

On 6 October 2005, in the case of Hirst v United Kingdom (No 2), the ECtHR ruled that the UK’s current ban on all serving prisoners from voting, as defined by the 1983 Act, contravenes Article 3 of Protocol No 1 of the European Convention on Human Rights (ECHR), which provides that signatory states should “hold free elections … under conditions which will ensure the free expression of the opinion of the people”.

The central element to the ECtHR ruling was that the UK’s blanket ban on prisoner voting was indiscriminate and disproportionate.

The debate

The Hirst (No 2) judgment set off a political debate. This debate has largely focused on the constitutional issues raised by the judgment, in particular: the UK’s relationship with the ECtHR; reform of the Human Rights Act 1998; and the importance of parliamentary sovereignty.

Hirst (No 2) is regarded by some as an example of the ECtHR overstepping its proper role and encroaching upon Parliament’s legislative authority. The judgment has also been criticised by some as an example of the misuse of human rights, in the sense that the ECtHR’s interpretation of Article 3 of Protocol No 1 went beyond the drafters’ intentions.

The responses

The 2005 Labour Government considered the ban on prisoners voting was appropriate but was conscious of the need to meet its obligations under international law to rectify the contravention of Article 3. In the 2005 Parliament, the Labour Government issued two consultations, one in 2006 and one in 2009. It did not bring forward final proposals before the 2010 General Election.

In 2012, the Coalition Government of 2010-15 published a draft Bill which gave three options for the right to vote in UK Westminster Parliamentary and European Parliament elections: the status quo – an outright ban; a ban for prisoners sentenced to 4 years or more, or a ban for prisoners sentenced to more than 6 months.

In 2013, a Joint Committee scrutinising the Bill recommended that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections. The Government did not formally respond and these proposals were not taken forward.

The Conservative Government’s Queen’s Speech in May 2015 did not refer to any plans to change the current legislative position, and David Cameron subsequently implied that the blanket ban on prisoner’s voting rights would not be changed while he remained Prime Minister.

In October 2015, in the case of Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, the Court of Justice of the European Union (CJEU) ruled that a French law, which deprived certain convicted prisoners of the vote, was not an unlawful breach of the right of EU citizens to vote in elections for the EU Parliament, as protected by the Charter of Fundamental Rights of the European Union.

The CJEU’s judgment also explained that the French law in question was lawful because it was proportionate, which in these circumstances meant that the law took into account “the nature and gravity of the criminal offence committed and the duration of the penalty”.

In December 2015, Michael Gove indicated that the Government would in 2016 produce a substantive response to the 2013 report by the Joint Committee on the draft voting Eligibility (Prisoners) Bill, after the publication of the consultation on reform of the Human Rights Act 1998. Neither a response to the Committee nor a consultation on the Human Rights Act has yet been published.

The solution

Following further calls from the Council of Europe’s Committee of Ministers to resolve the impasse, the Secretary of State for Justice, David Lidington, published proposals in November 2017. These proposals are more limited in scope than those included in previous proposals. The main change proposed is to allow prisoners on Temporary Licence to vote. In December 2017 the Council of Europe welcomed the proposals, agreeing to them as an acceptable compromise that would address the criticisms raised by Hirst (No 2).

The Government intended to implement the proposed changes by the end of 2018. It agreed to report back to the Council of Europe’s Committee of Ministers by September 2018. The Council of Europe confirmed that the case was closed at its meeting of September 2018.

Scotland and Wales

Although the dispute between the UK Government and the ECtHR appears to have been resolved, responsibility for local and devolved elections in Scotland and Wales is now devolved.

In March 2019, the Scottish Government completed a consultation on prisoner voting and how it can ensure compliance with ECtHR judgements. The Scottish Government opposed lifting the ban entirely and favoured allowing prisoners serving shorter sentences, 12 months or shorter, to be allowed to vote. The consultation sought views on what the appropriate length of sentence should be.

The Scottish Government introduced legislation in the Scottish Parliament to extend voting rights to some prisoners. The Bill was passed in February 2020 and will extend voting rights to prisoners serving sentences of 12 months or less for Scottish Parliamentary and local elections.

The Welsh Government consulted on the issue of prisoner voting in summer 2017 as part of a wider consultation on local election reform. The Welsh Government’s Local Government and Elections (Wales) Bill was introduced into the National Assembly on 18 November 2019. One of its key changes will be to lower the voting age for local government elections in Wales to 16. The Bill as introduced made no mention of prisoner voting. The Welsh Government had intended to amend the Bill to allow prisoners sentenced to less than four years to register to vote in time for scheduled council election in 2022. The intended amendments were dropped, with the Welsh Government saying its focus on the coronavirus pandemic meant it could not devote time to drafting amendments.

The National Assembly for Wales Commission also consulted on prisoner voting. Following the consultation, the Llywydd wrote to the Assembly’s Equality, Local Government and Communities Committee asking if it would conduct an inquiry into prisoner voting. The Committee agreed and subsequently reported in June 2019. It could not find consensus on a prison sentence threshold, but it recommended that prisoners serving sentences of less than four years should be entitled to register to vote in Assembly elections. Legislation to lower the voting age and to rename the Assembly the Senedd Cymru/Welsh Parliament, passed in November 2019, did not address the issue of prisoner voting.

 


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