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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

10 JAN 2013

Prisoner voting: how did we get here and where do we go from here?

The spectre of prisoner voting has haunted successive governments; since the judgment of the European Court of Human Rights in Hirst (No 2)[1] the issue has scarcely been off the political agenda and front pages, raising questions as to the future of the Human Rights Act and indeed the relationship between the UK and the Council of Europe. In spite of much bullish rhetoric and delay, the deadline for the UK government to take action to rectify the situation was reached on 23 November.

First to recap the prisoner voting saga: in 2005, the UK was found to be in breach of Article 3 Protocol 1 of the European Convention on Human Rights,[2] which provides that:

‘The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.'

The UK operates what is colloquially known as a ‘blanket ban' on prisoners serving terms of imprisonment voting in elections. The principle of denying the vote to prisoners dates back to the 1870s, and relates to the idea of the ‘civic death' suffered by someone convicted of an offence. Section 3 of the Representation of the People Act 1983 states that convicted prisoners cannot vote, regardless of whether they received their sentence prior to or following the enactment of the provision. In Hirst v UK (No 2), the ECHR interpreted Article 3 Protocol 1 as implying a right to vote for all individuals. The UK was thus in breach of the Article. The government of the day committed to consulting on measures to implement the judgment, claiming the intention to introduce draft legislation in 2008.

By 2009 no such measures had been taken, although consultation was under way. The Committee of Ministers issued an interim resolution, stating that the ‘general, automatic and indiscriminate restriction' fell outside any acceptable margin of appreciation. Further, there was no evidence that the government had ever considered the proportionality of the ban. The Committee expressed ‘serious concern' at the delay in implementation and noted the risk that no changes would be in place prior to the June 2010 general election. It was correct. Between 2005 and 2010, approximately 2,500 UK prisoners made claims to the European Court of Human Rights, prompting the Court to bring in a pilot judgment procedure.


[1]              (2006) 42 EHRR 41.

[2]              Hirst (No 2) (2006) 42 EHRR 41.

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