Next month will mark seven years since the European Court of Human Rights (ECtHR) declared unlawful the UK’s automatic ban that prevents all convicted prisoners in custody from voting in parliamentary elections.  Put in legal terms, the Grand Chamber of the ECtHR held in Hirst v UK (No.2) (2006) 42 EHRR 41 that the blanket ban (contained in section 3 of the Representation of the People Act 1983) breached the UK’s obligation under Article 3 Protocol 1 of the European Convention on Human Rights (ECHR) “to 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.”

Since Hirst, two successive UK Governments have failed to implement the judgment, despite their obligation to do so. In short, they have stalled progress, stating that it is a matter for Parliament to decide upon, and not, as PM David Cameron put it, “a foreign court” (BBC News article: Votes for prisoners: Cameron says UK will fight European Court, www.bbc.co.uk/news/uk-politics-18177776).  To date, the Government has failed to engage with the fact that the ECtHR’s decision was limited, only declaring an absolute ban on all prisoners voting unlawful and leaving open the option of a partial ban affecting, for example, the most serious of offenders.

Subsequent to the Government’s inaction, in a similar prisoner voting rights case (Greens and MT v UK [2010] ECHR 1826), the ECtHR set a six month time frame in which it required the UK to make proposals to change the law.  However, this deadline was extended at the Government’s request to allow it to intervene in another case, challenging the Italian system, Scoppola v Italy No.3 [2012] ECHR 868.

In May this year, the Grand Chamber gave its judgment in Scoppola, broadly reaffirming the principles set out in Hirst.  However, although the Grand Chamber confirmed that an absolute ban on all prisoners voting was unlawful, it emphasised that states have a wide discretion in determining which prisoners might be deprived of the right to vote.  The Court also clarified that it is not essential that the decision to deprive a prisoner of the vote should be made by a judge (as it had previously suggested in Frodl v Austria (2011) 52 EHRR 5).  The Grand Chamber concluded that the Italian partial ban (imposed only on those sentenced to three years or more) was lawful; and it also upheld Italy’s permanent voting ban for prisoners serving five years or more.

Another prisoner, George McGeoch, has attempted to challenge the ban by relying on an EU law claim (for breach of his rights as an EU citizen to take part in elections).  However, the most significant issue which the Government currently faces is the deadline of 22 November 2012, by which it must introduce proposals to change the law.  If the Government meets this deadline, then Committee of Ministers of the Council of Europe will set a time period in which the new law must be enacted, and the ECtHR will strike out the numerous prisoner claims that it has received (and stayed) since Hirst.  If the Government fails to meet this deadline, then the ECtHR will have to revive these prisoner claims.  The Government will of course have also acted in defiance of the ECtHR’s explicit deadline, and will continue to fail to comply with its international obligations.

For further information please contact:

David Oldfield on 0207 833 4433 or email d.oldfield@bindmans.com or another member of our Public Law team.