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Prisoners' voting rights: developments since May 2015

Published Monday, March 11, 2019

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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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 rumbled on without resolution for over a decade. In December 2017 the UK Government came up with proposals that the Council of Europe has said that, if implemented, 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 is now a devolved power. The Welsh Government consulted on the issue of prisoner voting in Summer 2017 as part of a wider consultation on local election reform and is currently considering its approach.

The National Assembly for Wales’ Equality, Local Government and Communities Committee is conducting an inquiry into prisoner voting in 2019.

In December 2017, the Scottish Government also issued a consultation on local election arrangements. The Scottish Government commented in its consultation document that the Scottish Parliament’s Equalities and Human Rights Committee was conducting an inquiry on prisoner voting. The Committee reported in May 2018, recommending that the ban on prisoner voting should end in its entirety.

The Scottish Government has now launched a consultation on prisoner voting and how it can ensure compliance with the ECHR. The Scottish Government favours allowing prisoners serving shorter sentences to be allowed to vote in a similar way to the way remand prisoners may currently vote. The consultation seeks views on what the appropriate length of sentence should be.

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.

The future?

Although the dispute between the UK Government and the ECtHR appears to have been resolved, the responsibility for local and devolved elections in Scotland and Wales is now a devolved power. The Welsh Government consulted on the issue of prisoner voting in Summer 2017 as part of a wider consultation on local election reform and is currently considering its approach. The Scottish Government has also recently consulted in its proposals for prisoner voting and is considering the responses.

Commons Briefing papers CBP-7461

Author: Neil Johnston

Topics: Elections, Human rights, Prisons

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