Convicted prisoners and the franchise

Convicted prisoners and the franchise

Standard Note:
SN/PC/01764
Last updated:
11 June 2008

Author:
Isobel White

Parliament and Constitution Centre

This standard note looks at the current position regarding convicted prisoners and the franchise. Following the judgment of the European Court of Human Rights on 6 October 2005 that the UK’s current ban on all serving prisoners from voting contravenes Article 3 of Protocol No 1 of the European Convention on Human Rights, the Government decided to publish a consultation document on options for a change in policy. The document was published on 14 December 2006 and the consultation period closed on 7 March 2007.

The position of prisoners on remand is covered by the Representation of the People Act 2000.

Contents

1 Background

2 The position in other countries

3 Lobbying for change

4 ECHR decision: Hirst v the United Kingdom

5 The Government’s response to the ECHR ruling

6 ECHR appeal decision

7 Consultation on prisoners’ voting rights

8 The Government’s proposed options for changing the law
8.1 Enfranchise prisoners sentenced to less than a specified term
8.2 Allow sentencers to decide on withdrawal of franchise
8.3 Enfranchise all tariff-expired life sentence prisoners
8.4 Proposals specific to convicted prisoners found guilty of election offences
8.5 Proposals specific to unconvicted and convicted offenders detained in mental hospitals

9 Scotland

10 Northern Ireland

11 Bibliography

Standard Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are
available to discuss the contents of these papers with Members and their staff but cannot advise others.

Background

At present prisoners serving a custodial sentence do not have the right to vote.

This ban was enshrined in Schedule 3 of the Representation of the People Act 1983 as amended by the Representation of the People Act 1985:
3 Disfranchisement of offenders in prison etc
(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence [or unlawfully at large when he would otherwise be so detained] is legally incapable of voting at any parliamentary or local government election.
(2) For this purpose –
(a) “convicted person” means any person found guilty of an offence (whether under the law of the United Kingdom or not), including a person found guilty by a court-martial under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or on a summary trial under section 49 of the Naval Discipline Act 1957, or by a Standing Civilian Court established under the Armed Forces Act 1976, but not including a person dealt with by committal or other summary process for contempt of court; and
(b) “penal institution” means an institution to which the Prison Act 1952, the Prisons (Scotland) Act 1952 or the Prisons Act (Northern Ireland) 1953 applies; and
(c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence, whether or not the sentence provided for detention in the event of default, but a person detained by virtue of a conditional pardon in respect of an offence shall be treated as detained in pursuance of his sentence for the offence.
(3) It is immaterial for the purposes of this section whether a conviction or sentence was before or after the passing of this Act.

In 1999 the Home Office Working Party on Electoral Procedures (chaired by the then Home Office minister George Howarth), identified the disenfranchisement of convicted but unsentenced prisoners and prisoners detained on remand as an accidental effect of the residence criteria for registration as an elector. The Representation of the People Act 1983 provided that a penal institution could not be regarded as a place of residence for registration purposes and individuals who were imprisoned could therefore not register as electors as they were not able to establish any other address for registration purposes.

The Working Party considered that there was no argument of principle to deprive unconvicted prisoners of the franchise and recommended that ‘unconvicted remand prisoners should be allowed to continue to be registered on the original register until such time as they are released from remand, or sentenced to a custodial sentence’. They recognised that a remand prisoner’s home circumstances may change during a period of detention, and therefore recommended that it would be sensible for the names of remanded prisoners to be recorded as ‘other electors’ rather than against any fixed address.

1 The disenfranchisement of prisoners in Great Britain dates back to the 19th century. Linked to the notion of ‘civic death,’ the Forfeiture Act of 1870 denied offenders their rights of citizenship.

2 Working Party on Electoral Procedures 1999, para 2.3.12, available from the Home Office website www.homeoffice.gov.uk
regard to convicted but unsentenced prisoners, the Working Party recognised that there had been a finding of guilt in the court case, but without the benefit of sentence it would not be clear if the nature and seriousness of the offence justified a custodial sentence. They therefore made no recommendation in respect of this class of prisoner.

The recommendations put forward for remand prisoners were implemented in the Representation of the People Act 2000.4 The Act did not make provision for the enfranchisement of convicted prisoners, who remain disenfranchised under s3 of the Representation of the People Act 1983, as amended.

It is clear that successive governments have held the view that prisoners convicted of serious crimes which have warranted imprisonment have lost the moral authority to vote. This was summarised during questions to the Home Office minister in the House of Lords in 2003:

Lord Lester of Herne Hill asked her Majesty’s Government: Whether denying prisoners the right to vote affects their ability to persuade Ministers of the Crown and those responsible for the Prison Service to improve the conditions in which they are imprisoned; and whether denying prisoners the right to vote amounts to an additional punishment; and whether this is compatible with Article 25 of the International Covenant on Civil and Political Rights as interpreted by the United Nations Human Rights Committee.

The Minister of State, Home Office (Baroness Scotland of Asthal): It has been the view of successive governments that prisoners convicted of a crime serious enough to warrant imprisonment have lost the moral authority to vote. The working party on electoral procedures, which examined and reviewed all electoral arrangements after the general election held in 1997, published its finding on 19 October 1999. It could find no reason to change the existing system in which convicted prisoners found guilty of a crime serious enough to warrant imprisonment are denied the right to vote for the duration of their imprisonment.

Prisoners have a variety of ways in which they can express their views about conditions in prison, including by writing to their Member of Parliament – and many do so.

Article 25 of the International Covenant on Civil and Political Rights covers the rights of the individual to be involved in public affairs and to vote in periodic free elections without unreasonable restrictions. The covenant has not been incorporated into English law, but the UK is signed up to the covenant.
Parliament has decided that the convicted prisoners have forfeited their right to have a say in the way the country is governed for the period during which they are in custody. This temporary disenfranchisement pursues a legitimate aim and is proportionate, and is considered a reasonable restriction within the terms of Article 25. It does not, in our view, affect the substance of Article 25, which is concerned with universal franchise and the free expression of the people in the choice of legislature. Long-standing precedent set by the European Court of Human Rights upholds that certain sections of society, including convicted prisoners, can be excluded from voting’.

3 Working Party on Electoral Procedures 1999, para 2.3.13, available from the Home Office website
www.home-office.gov.uk
4 Part I, section 5
5 HL Deb 20 October 2003 c143 WA 3

The position in other countries

At present, sixteen European nations, including Denmark, Spain, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders. In other countries, electoral disqualification depends on the crime committed or the length of the sentence. Austria, Malta and San Marino ban all prisoners serving more than one year. In France, certain crimes are identified which carry automatic forfeiture of political rights. Germany’s ban extends only to prisoners whose crimes target the integrity of the state or the democratic order, such as political insurgents. In Greece, only those given life sentences are refused the right to vote. The following list of the situation in other European countries was provided by the European Court of Human Rights in its decision to reject the UK Government’s appeal against the ECHR’s judgment in the case of Hirst v the United Kingdom:
Prisoners may vote in 16 countries: Albania, Bosnia and Herzegovina (unless serving a sentence imposed by the International Tribunal for the former Yugoslavia), Cyprus (though they must happen to be out of prison on the day of the elections) Croatia, the Czech Republic, Denmark, Finland, the former Yugoslav Republic of Macedonia, Iceland, Lithuania, Portugal, Slovenia, Spain, Sweden, Switzerland and Ukraine.
Prisoners may frequently/sometimes vote in 13 countries: Austria, Belgium, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Norway, Poland, Romania and Turkey.

Prisoners cannot vote in 13 countries: Armenia, Azerbaijan, Bulgaria, Estonia, Georgia, Hungary, Ireland, Latvia, Liechtenstein, Moldova, Russia, Slovakia and the United Kingdom.6
Russia and Japan exclude all convicted prisoners from voting. In Australia, prisoners can vote in two of seven states, while in the United States, some prisoners are banned from voting even after their release from jail.

Lobbying for change

There has been pressure for a number of years to change the law.
The Prison Reform Trust7 (PRT) has long campaigned for prisoners to be given the vote. In December 1998 it published a briefing Prisoners and the Democratic Process which argued that voting rights helped prisoners to develop a sense of social responsibility and should be extended to all UK prisoners. The Prison Reform Trust also presented evidence to the Home Affairs Select Committee enquiry into Electoral Law and Procedure in 1997-98.8

On 2 March 2004 the Prison Reform Trust and Unlock (the National Association of Ex-Offenders) launched the ‘Barred from Voting’ campaign to secure the right to vote for prisoners. The PRT again argued that ‘giving prisoners the vote would encourage them to take responsibilities that come with citizenship. It would also encourage politicians to take more of an active interest in prisons, which in turn would raise the level of debate about prisons and penal policy.’9 Backing the ‘Barred from Voting’ campaign, among others, were former Conservative Home Secretary Lord Douglas Hurd, Liberal Democrat Simon Hughes
6 ECHR decision available at http://www.echr.coe.int/Eng/Press/2005/Oct/GrandChamberJudgmentHirstvUK061005.htm
7 A registered charity established in 1981
8 Appendix 14 HC 768 197-98
9 See Prison Reform Trust’s website at http://www.prisonrefromtrust.org.uk/news-prvotingcampaign.htm
and Labour peer Baroness Kennedy QC. A letter to the Guardian from politicians and prison reformers also supported the group’s aims.

The debate achieved greater prominence in March 2005, during the run up to the General Election, when Charles Kennedy called for ‘imprisoned criminals to be allowed the right to vote.’ In a Channel 5 programme, he told interviewer Kristy Young, ‘We believe that citizens are citizens. Full stop….If you take the view as we do in principle that an individual citizen is an individual citizen that means that you have the entitlement that goes with it in terms of voting’.
There were press reports during the campaign quoting Alan Milburn, Labour’s general election co-ordinator, as stating that the Liberal Democrats were more interested in the rights of ‘criminals and the yobs’ than ‘hardworking families who play by the rules,’ and criticising Charles Kennedy for ‘wanting convicted criminals to have a say in who runs Britain’.

The Conservatives also opposed the Liberal Democrats’ views. Shadow Home Secretary David Davis told politics.co.uk that the Liberal Democrats’ policy of votes for prisoners ‘betrays an extraordinary sense of priorities.’ He added, ‘We believe that the criminal justice system is already weighted too far in favour of the criminal not the victim. It is very important that the Liberal Democrats are never allowed to implement this policy which would unbalance it even further.’

There have been legal challenges to the law on the grounds that disenfranchisement breaches the Human Rights Act 1998. In 2001 three convicted prisoners challenged the Electoral Registration Officer’s decision not to register them to vote. The High Court dismissed their applications, which in the case of two of them was for judicial review, and in the case of the third (Hirst v HM Attorney General), was for a declaration of incompatibility under the Human Rights Act 1998, ruling that it was a matter for Parliament rather than the courts to decide whether prisoners should have the vote.
This decision was referred to in the following Parliamentary Questions in the House of Lords:
Lord Lester of Herne Hill asked Her Majesty’s Government: Whether they accept the recommendation by the United Nations Human Rights Committee in its concluding observations of 29 October on the Fifth Periodic Report submitted by the United Kingdom, to reconsider United Kingdom law depriving convicted prisoners of the right to vote.
Lord Falconer of Thoroton: We have read the committee’s draft recommendation and we have no plans to amend the law as it stands at present. The Divisional Court confirmed earlier this year that the disfranchisement of convicted prisoners is both legitimate and proportional in its aim and that there has therefore been no breach of human rights in maintaining the current practice.
10 Don’t deny the vote, Guardian, 2 March 2004
11 Channel 5, Tuesday 1 March 2005
12 see http://www.politics.co.uk/issueoftheday/labour-lib-dems-are-soft-on-crime-$7943671.htm
13 see http://www.politics.co.uk/issueoftheday/conservatives-justice-system-should-favour-victim-$7944040.htm
14 R v (1) Secretary of State for the Home Department (2) Two Election Registration Officers, Ex Parte (1) Pearson (2) Martinez: Hirst v HM Attorney General (2001) [2001] EWHC Admin 239
15 HL Deb 27 November 2001 c28-9WA
5
4
ECHR decision: Hirst v the United Kingdom
On 30 March 2004 the European Court of Human Rights (ECHR) gave its judgement in the case of Hirst v The United Kingdom. John Hirst, a prisoner serving a life sentence for manslaughter at Rye Hill Prison in Warwickshire, had challenged the ban on prisoners’ voting. He had first challenged the ban in the High Court, but lost in 2001 when the court ruled that it was compatible with the European Convention for prisoners to lose the right to a say in how the country was governed (see above).
Seven judges at the ECHR ruled that the ban breached article 3 of protocol 1 of the European Convention on Human Rights, which guarantees ‘free elections…under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’
The Director of the Prison Reform Trust, Juliet Lyon, welcomed the Court’s decision:
This judgement will help to bring the UK into line with most civilised countries, which treat prisoners as citizens, understand their right to representation and see enfranchisement as an essential part of resettlement. It will remove an historic injustice. The Government now has to act without delay to overturn the blanket ban on voting by sentenced prisoners, an absurd relic of the nineteenth century.’
5
The Government’s response to the ECHR ruling
A PQ on 20 April 2004 sought the Government’s reaction to the ruling:
Mr. Maude: To ask the Parliamentary Under-Secretary of State, Department for Constitutional Affairs what plans he has to allow serving prisoners to vote in (a) local and (b) general elections; and if he will make a statement.
Mr. Leslie: At present, convicted and detained prisoners are not able to vote in UK elections. On 30 March 2004, the European Court of Human Rights gave its judgment in the case of Hirst v The United Kingdom, concerning the disfranchisement of convicted prisoners. The Court found that there had been a breach of the applicant’s human rights. We are currently carefully considering the implications of the judgement and what action we might take.’ 18
The Department of Constitutional Affairs released a statement stating that: ‘We have always argued that prisoners should lose the right to vote while in detention because if you commit a crime that is serious, you should lose the right to have a say in how you are governed…This judgement questions that position.’19
The Government appealed the decision. The appeal was held on 27 April 2005 but the final decision was not announced until 6 October 2005.
16 Judgement on ECHR’s website at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=67&Action=Html&X=505180130&Notice=0&Noticemode=&R elatedMode=1
17 http://www.prisonreformtrust.org.uk/news-prvotingcampaign.htm
18 HC Deb Vol 420 c463W
19 http://news.bbc.co.uk/1/hi/england/coventry_warwickshire/3583855.stm 6
6
ECHR appeal decision
The Grand Chamber of the European Court of Human Rights held, by a majority of 12 to 5, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights. The summary of the judgment is available at http://www.echr.coe.int/Eng/Press/2005/Oct/GrandChamberJudgmentHirstvUK061005.htm. In its decision the Court found that prisoners
…generally continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention, except for the right to liberty, where lawfully imposed detention expressly fell within the scope of Article 5 (right to liberty and security). There was, therefore, no question that prisoners forfeit their Convention rights merely because of their status as detainees following conviction. Nor was there any place under the Convention system, where tolerance and broadmindedness were the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
That standard of tolerance did not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set out in the Convention. Article 3 of Protocol No. 1, which enshrined the individual’s capacity to influence the composition of the law-making power, did not therefore exclude that restrictions on electoral rights be imposed on an individual who had, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations. However, the severe measure of disenfranchisement was not to be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. As in other contexts, an independent court, applying an adversarial procedure, provided a strong safeguard against arbitrariness.20
The Court responded to the UK Government’s submission that the ban was restricted to only around 48,000 prisoners, ‘those convicted of crimes serious enough to warrant a custodial sentence and not including those on remand’:
However, the Court considered that 48,000 prisoners was a significant figure and that it could not be claimed that the bar was negligible in its effects. It also included a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Also, in sentencing, the criminal courts in England and Wales made no reference to disenfranchisement and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote.
As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there was no evidence that Parliament had ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It could not be said that there was any substantive debate by members of the legislature on the continued justification, in the light of modern day penal policy and of current human rights standards, for maintaining such a general restriction on the right of prisoners to vote.
20 http://www.echr.coe.int/Eng/Press/2005/Oct/GrandChamberJudgmentHirstvUK061005.htm 7
It was also evident that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was in general seen as a matter for Parliament and not for the national courts. The domestic courts did not therefore undertake any assessment of the proportionality of the measure itself.21
The Court also found that although the Representation of the People Act 2000 had granted the vote to remand prisoners, Section 3 of the Representation of the People Act 1983 remained a ‘blunt instrument’ which
stripped of their Convention right to vote a significant category of people and it did so in a way which was indiscriminate. It applied automatically to convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right had to be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1. The Court therefore held, by 12 votes to five, that there has been a violation of Article 3 of Protocol No. 1.
Considering that the Contracting States had adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court left the United Kingdom legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1.22
Lord Falconer, the then Lord Chancellor, commented on the ruling on the BBC Radio 4’s World at One programme saying “I can make it absolutely clear that in relation to convicted prisoners, the result of this is not that every convicted prisoner is in the future going to get the right to vote…We need to look and see whether there are any categories that should be given the right to vote.”23 The press drew attention to some marginal constituencies with prisons where enfranchising prisoners would affect the outcome of elections:
The practicalities of allowing some convicted prisoners to vote have to be worked out, but prisoners could vote either in the constituency where they are held, or, as seems more likely, where they used to live. Allowing them to vote where they are held could affect the result in some constituencies. On the Isle of Sheppey there are three prisons, with 2,224 inmates, and Derek Wyatt, the Labour MP, has a majority of 79. The three jails on the Isle of Wight have 1,618 offenders and the MP's majority is 2,826.24
A PQ on 13 October 2005 revealed that there were no records kept of the number of remand prisoners who are eligible to vote.
Mrs. Gillan: To ask the Minister of State, Department for Constitutional Affairs how many remand prisoners were eligible to vote in each of the last three general elections; and how many exercised their right to vote in each.
21 ibid
22 ibid
23 Prisoners granted the right to vote, Times, 7 October 2005
24 ibid
8
Ms Harman: The information sought is not available. The Representation of the People Act 2000 made it possible for prisoners on remand, who are otherwise eligible to vote, to register to vote from their place of detention. HM Prison Service records the total number of remand prisoners though no separate record is kept of those remand prisoners who are eligible to vote. Records are not kept of whether particular categories of voters have exercised their right to vote at UK elections. 25
7
Consultation on prisoners’ voting rights
On 2 February 2006 the Lord Chancellor announced in a written statement that there would be a public consultation about prisoners’ voting rights following the recent ECHR judgment:
The recent judgment of the European Court of Human Rights in the case of Hirst, concerning prisoners' voting rights, has raised a number of difficult and complex issues which need careful consideration. The ECHR indicated that there should be proper debate about those issues. I have therefore concluded that the best way forward would be to embark on full public consultation in which all the options can be examined and which will give everyone the opportunity to have their say. A consultation document is therefore in preparation and I hope it will be available for discussion in a few weeks' time. Thereafter there will be a period for those with an interest to make their views known, which will help to inform the development of future policy. 26
Lord Falconer of Thoroton announced the publication of the consultation document on 14 December 2006:
The paper sets out the background to the case of Hirst v UK, the conclusions reached by the Grand Chamber, and proposes a number of potential options on which the Government would welcome views. This is a contentious issue. The Government are firm in their belief that individuals who have committed an offence serious enough to warrant a term of imprisonment, should not be able to vote while in prison. None the less, we recognise that we must decide how to respond to the Grand Chamber's judgment.
The Government welcome responses from all sides of the debate. We encourage respondents to consider thoroughly the background material provided and each option before submitting a response. The final date for submitting a response is 7 March 2007. Following the results of this consultation, the Government will produce a second stage consultation document, exploring how any proposed change to current arrangements might work in practice. Once the consultation process has concluded and views have been considered, we will put proposals to Parliament, which must, ultimately, debate and decide upon an issue as significant as this.27
The consultation document can be found on the website of the Department for Constitutional Affairs at http://www.dca.gov.uk/consult/voting-rights/condoc.htm. The document sets out the possible options for the enfranchisement of prisoners and also seeks views on the retention of the ban on all convicted, detained prisoners. The options include relating disenfranchisement to the length of sentence and allowing judges to determine whether the right to vote should be withdrawn from an offender. These options are considered in more
25 HC Deb 13 October 2005 Vol 437 c594W
26 HL Deb 2 February 2006 cWS26
27 HL Deb 14 December 2006 cWS203
9
detail below. The consultation process will have two stages before any proposals are put before Parliament. The first stage will ascertain whether any form of enfranchisement should be taken forward and the second will look at the possible impact of a change in the law on the conduct of elections in the UK, on electoral administrators and on the prison service.
Replying to a question on 23 July 2007 about the results of the first stage of the consultation exercise, the Parliamentary Under-Secretary of State, Ministry of Justice, Lord Hunt of Kings Heath, replied:
My Lords, the Government are considering how to take forward the implementation of the Hirst judgment in light of the first-stage consultation on this issue. The results of that stage will be published with the second consultation document, which will look at the practical issues of any possible enfranchisement of convicted prisoners.28
When asked why the options excluded a general enfranchisement of all prisoners Lord Hunt of Kings Heath said that as the Government did not support a general enfranchisement there seemed little point in engaging in consultation on it.29
On 6 May 2008 Lord Lestor of Herne Hill asked about the progress following the first stage of the consultation process and whether the Government intended to introduce draft legislation to implement the ECHR judgment. The Minister, Lord Hunt of Kings Heath, replied:
The Government have previously submitted to the Committee of Ministers a timetable based on a two-stage consultation process aimed at establishing the views of the public, electoral administrators and others on how the franchise should be extended and on the wealth of detailed questions about how this would be achieved in practical terms. The first consultation exercise concluded in March 2007. However, since that point the context for the debate about the rights and responsibilities of citizenship, and in particular the exercise of the franchise, in the United Kingdom has changed very significantly.
In July 2007 the Government published The Governance of Britain, a Green Paper setting out a range of proposals to reinvigorate democracy and rebuild public trust and engagement in politics. At the core of the Green Paper is a proposal for a national debate on citizenship, and the rights and responsibilities that attach to the concept of being a citizen. The Government committed to taking action to ensure a clearer definition and understanding of the rights and responsibilities that attach to British citizenship. In addition, the Goldsmith review published on 11 March 2008 made recommendations about the right to vote being linked to citizenship.
The Government remain committed to carrying out a second, more detailed public consultation on how voting rights might be granted to serving prisoners, and how far those rights should be extended. In light of The Governance of Britain Green Paper and the Goldsmith review, the Government consider it essential that changes to the law to extend the franchise to those held in custody are considered in the context of the wider development of policy on the franchise and the rights that attach to British citizenship, in order that reform in this fundamental area can proceed in a holistic way.
28 HL Deb 23 July 2007 c543
29 HL Deb 23 July 2007 c545
10
The Committee of Ministers is next due to sit from 4 to 6 June 2008 and the Government have submitted details of our intended course of action. We intended to submit further information to the Committee of Ministers in due course on the form and timing of a further consultation in the light of the wider debate which is now taking place. Following consideration of the outcome of consultation, legislation to implement the Government's final approach will be brought forward as soon as parliamentary time allows.30
Lord Hunt of Kings Heath added that the Government anticipated that Section 3 of the Representation of the People Act 1983 would need to be amended either by primary legislation or remedial order in order to comply with the ECHR judgment.31 The Government was also still committed to carrying out a second, more detailed, public consultation on how voting rights might be granted to serving prisoners and how far those rights should be extended.
The Parliamentary Under-Secretary of State, Ministry of Justice, Bridget Prentice, reiterated this in a response to a Parliamentary Question on 10 June 2008:
Mr. Heathcoat-Amory: To ask the Secretary of State for Justice what plans he has to extend voting rights for prisoners in England and Wales.
Bridget Prentice: The Grand Chamber of the European Court of Human Rights in the case of Hirst v. United Kingdom requires the Government to reconsider its policy of a blanket ban on the voting rights of convicted prisoners. In response to this we undertook a first stage consultation which concluded in March 2007. However, since that point, the context for the debate about the rights and responsibilities of citizenship, and in particular the exercise of the franchise, in the United Kingdom has changed significantly following the launch of the Governance of Britain Green Paper and publication of the Goldsmith review. We consider it essential that any changes to the law to extend the franchise to those held in custody are considered in the context of the wider development of policy on the franchise and the rights that attach to British citizenship.32

8
The Government’s proposed options for changing the law
8.1
Enfranchise prisoners sentenced to less than a specified term
The policy of a number of member states of the Council of Europe is to allow prisoners sentenced for less than a specified term to retain the right to vote but to disenfranchise those who have been given longer sentences. The consultation document notes that in Belgium those prisoners who receive a sentence of longer than 4 months are disqualified from voting; in Austria prisoners who are sentenced for a year or more are disqualified; in Italy prisoners serving 5 years or more are disqualified and in Greece all prisoners who are given a life sentence are permanently disenfranchised.33 The Government acknowledges that setting the threshold at which prisoners become disenfranchised may lead to inconsistencies and
Voting rights of convicted prisoners detained within the United Kingdom- the UK Government’s response to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst v. the United Kingdom: consultation paper. Department for Constitutional Affairs, 14 December 2006
indicates in the consultation paper that it is ‘not inclined to consider extending the eligible length of sentence beyond low sentence lengths, such as one year in prison.’34
8.2
Allow sentencers to decide on withdrawal of franchise
There are two alternative means of doing this. The first would be for legislation to empower judges to determine whether, despite a general disenfranchisement of prisoners, the offender should retain the capacity to vote. The second would empower judges to direct that the offender should be disqualified even if there were no general disqualification of prisoners. Individual consideration would demonstrate a move away from the general ban on prisoners’ voting rights but this option would increase the burden on the judiciary when determining sentences.
8.3
Enfranchise all tariff-expired life sentence prisoners
The Government indicates in the consultation document that it considered enfranchising prisoners who are kept beyond the original length of their sentence, due to their continued threat to the public, as undesirable and does not intend to pursue this option.
8.4
Proposals specific to convicted prisoners found guilty of election offences
Prisoners who receive custodial sentences after being convicted of certain election offences automatically lose their right to vote under the current ban on prisoners voting. Penalties for election offences which are classed as corrupt practices mean that the convicted offender will be barred from holding elective office for 5 years and in the case of offences relating to postal or proxy votes the offender will also be barred from voting for a period of 5 years. The Government asks whether, in the light of the European Court’s judgment, these offences should mean an automatic withdrawal of the franchise.
8.5
Proposals specific to unconvicted and convicted offenders detained in mental hospitals
Under Section 3A of the Representation of the People Act 1983 offenders detained in mental hospitals are not currently able to register to vote. The Government asks for views on whether any changes to the ban on prisoners voting should be extended to those detained in such hospitals although it will not consider extending the vote to patients who are subject to restriction orders under Section 41 of the Mental Health Act 1983.
In response to the publication of the consultation document, Juliet Lyon, Director of the Prison Reform Trust, said:
The Prison Reform Trust is pleased that the government is taking steps to respond to the unequivocal judgment by the European Court that the blanket ban on prisoners voting is unlawful. The debate must start from the democratic principle that being a citizen is an inalienable right and the practical observation that the exercise of responsibilities encourages responsible behaviour.
The government should welcome the chance to overturn an outdated ban with no place in a modern prison system that aims to ensure that those who have been punished with the loss of liberty can become good and useful citizens on release.
34 ibid, p24
12
There has been considerable support for this move from the Prison Governors Association, past and present Chief Inspectors of Prisons, the Anglican and Catholic Bishops to prisons, and Parliamentarians of all parties.35

9
Scotland
In November 2004, a former prisoner in a Scottish jail, William Smith, brought forward an action that denying inmates the right to vote breached human rights legislation. He lodged the claim while serving a short sentence at Glenochil Prison in Clackmannanshire, having been refused the right to register by the Deputy Electoral Registration Officer in Stirling. Once released, he was granted legal aid to press ahead with his test case at the Court of Session in Edinburgh.
The case was called before the Registration Appeal Court on 17 February 2005.36 The hearing was procedural and a further respondent was allowed as a party to the appeal, namely the Secretary of State for Constitutional Affairs.37 The Registration Appeal Court heard the appeal on 24 November 2006. The Scotsman reported:
The results of next year’s Scottish Parliament elections could be challenged by prisoners if it goes ahead without inmates getting the vote, a court was told yesterday. A QC warned that the human rights of up to 7,000 prisoners could be violated. Aidan O’Neill told the Registration Appeal Court that legal actions could be brought by prisoners who said they had been wrongly disenfranchised. He argued that interdicts might be sought because the Scottish ministers would be assisting an election being held on the basis of an electoral franchise which was incompatible with the European Convention on Human Rights. He asked three judges to make a declaration that a decision to deny a prisoner the right to vote was incompatible with the convention. A ruling is expected later.38
The BBC reported on 24 January 2007 that three judges at the Court of Session had issued a declaration that the blanket ban on convicted prisoners voting was incompatible with their human rights. Lord Abernethy, who heard the appeal with Lord Nimmo Smith and Lord Emslie, said the elections in May 2007 (for the Scottish Parliament and local government) would take place in a way which was not compliant with the European Convention on Human Rights. The judges said they had come to the view that they "should make a formal declaration of incompatibility to that effect".39

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Northern Ireland
On 20 February 2007 three prisoners in Northern Ireland, Stephen Boyle, Ciaran Toner and Hugh Walsh, were granted leave by the High Court to seek a judicial review of the decision refusing their application to be put on the electoral register. The hearing took place on Thursday 1 March before the Northern Ireland Assembly elections on 7 March 2007.40 Mr Justice Gillen said that the elections were a matter of profound importance to the people of
35 http://www.prisonreformtrust.org.uk/subsection.asp?id=749
36 A Scottish Executive report (Civil Judicial Statistics 2002, p32) described the Registration Appeal Court in
the following terms: ‘In the matter of registration of voters, appeal against a decision of a registration officer
may be taken to the Sheriff and from his decision appeal lies on any point of law, by way of stated case to a
Court consisting of three judges of the Court of Session, appointed by Act of Sederunt.’
37 William Smith v Electoral Registration Officer and another XA33/04
38 Prisoners could challenge Holyrood poll, Scotsman. 24 November 2006
39 http://news.bbc.co.uk/1/hi/scotland/6294973.stm
40 http://news.bbc.co.uk/1/hi/northern_ireland/6379019.stm 13
Northern Ireland and that no impediment should be put in the path of progress and dismissed the case.

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Bibliography
•
Prisoners as citizens in a democracy by Deborah Cheney. The Howard Journal, vol 47, No2, May 2008.
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The punishment of not voting by Eric Metcalf. Justice Journal, Vol 4(1) 2007.