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Prisoners' voting rights: developments since May 2015

Published Monday, February 15, 2016

This House of Commons Briefing Paper analyses the debate over the voting rights of prisoners since May 2015, it also includes a concise summary of the main developments before May 2015.

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This paper complements the detailed coverage of events between the European Court of Human Rights' (ECtHR) judgment in Hirst (No 2) in 2005 and the May 2015 General Election in the House of Commons Library's Standard Note: Prisoners' voting rights (2005 to May 2015).

Do prisoners have the right to vote?

Prisoners serving a custodial sentence do not have the right to vote in any elections under UK law. This ban is set out in Section 3 of the Representation of the People Act 1983.

Why is the subject controversial?

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

This judgment set off a political debate that has rumbled on since then. This debate has largely focused on the constitutional issues raised by the judgment, in particular the UK's relationship with the European Court of Human Rights, reform of the Human Rights Act 1998 and parliamentary sovereignty.

For information about the European Convention on Human Rights and compliance with the Court’s rulings see Library Standard Notes SN/IA/5936, The European Convention on Human Rights and the Court of Human Rights: issues and reforms, and SN/IA/5941, European Court of Human Rights rulings: are there options for governments?

What has happened since May 2015?

The Conservative Government has indicated that it does not intend to bring forward legislation to respond to the European Court of Human Rights' judgment in Hirst (No 2).

The Council of Europe's Committee of Ministers, which is responsible for enforcing judgments of the European Court of Human Rights, has twice called upon the UK to respond to the Court's judgment in Hirst (no2).

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 European 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”.

This has provoked debate over the implications of the Charter of Fundamental Rights of the European Union for the UK's legislative prohibition on prisoners voting in elections to the European Parliament.

What are the prospects of further developments?

In December 2015, Michael Gove, the Lord Chancellor and Secretary of State for Justice, gave evidence to the House of Lords Select Committee on the Constitution. In his evidence he indicated that the hoped the Government would in 2016 produce a full substantive response to the report published in December 2013 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.

Future developments on prisoner voting are likely to be closely tied to the Government's forthcoming proposals on reforming the Human Rights Act 1998. Further, prisoner voting, as an example of how the existing system of human rights protection operates in the UK, is likely to feature prominently in the debate on those proposals.

Commons Briefing papers CBP-7461

Author: Jack Simson Caird

Topics: Elections, Human rights, Prisons

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