Committee of Ministers of the Council of Europe meeting 2-4 March 2010
NOTES OF THE AGENDA
74025/01 Hirst No. 2, judgment of 06/10/2005 - Grand Chamber
The case concerns the fact that the applicant, who was serving a prison sentence following a criminal conviction,
was barred from voting (violation of Article 3 of Protocol No. 1).
The European Court noted in particular that the ban imposed by the Representation of the People Act 1983 applied
automatically to convicted prisoners irrespective of the length of their sentence, the nature or gravity of their
offence and their individual circumstances. The European Court considered that the ban affected a significant
number of people (around 48 000 at the time of the judgment) and it included a wide range of offenders and
sentences from one day to life. When “sentencing, the criminal courts made no reference to disenfranchisement …
so there was no direct link between the facts of a case and the loss of the right to vote” (§77). Lastly, there was “no
evidence that Parliament had ever sought to weigh the competing interests or assess the proportionality of a
blanket ban” (§79). As regards the existence or not of any consensus among contracting states, the Court noted
that “it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is
imposed or in which there is no provision allowing prisoners to vote”. The Court concluded that such a general
automatic and indiscriminate restriction on a vitally important 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 (§82).
Individual measures: The applicant was sentenced in 1980 to a term of discretionary life imprisonment. His tariff
(that part of the sentence relating to retribution and deterrence) expired in 1994. He was release on licence in
2004. In the event of being recalled to prison, the applicant’s eligibility to vote will depend on the general measures
adopted (see § 72 of the judgment).
General measures: At the time of the judgment, there were around 48 000 convicted and detained prisoners in
England and Wales. According to the United Kingdom authorities, in February 2009 there were 63 600 serving
prisoners in England and Wales. In Scotland, the projected prison population for 2009-2010 is 8000 (see Scottish
Government Statistics Publication Notice
In accordance with the relevant legislation, the next United Kingdom general election must be held at the latest on
03/06/2010. Elections are also due in 2011 to the Scottish Parliament, National Assembly for Wales and Northern
Ireland Assembly.
1) The action plan: On 07/04/2006, the United Kingdom authorities presented an action plan for the execution of
the judgment. The authorities undertook to conduct a two-stage consultation process, with a view to introducing
before Parliament the necessary legislative reform in October 2007. A revised action plan was submitted on
20/12/2006. Its revised time-table anticipated the introduction of draft legislation by May 2008.
2) First-stage consultation: The first-stage consultation paper was published on 01/12/2006. The consultation
paper did not set out full enfranchisement as a realistic option, as the government was opposed to such a proposal.
Specific proposals were presented concerning prisoners convicted of election offences and certain categories of
persons detained in mental hospitals. The first stage consultation ended on 07/03/2007.
3) Second-stage consultation: The second-stage consultation paper was published on 08/04/2009 (available at
http://www.justice.gov.uk/consultations/prisoners-voting-rights.htm). It summarises the responses to the first-stage
consultation and consults on proposals for the limited enfranchisement of prisoners. The majority of responses to
the first-stage consultation favoured either full enfranchisement of prisoners (48% of respondents), or a continued
policy of total disenfranchisement (25%). Only four out of eighty-eight responses favoured the proposal that
enfranchisement should be determined by reference to sentence length. The government reached the conclusion
that to implement the judgment, a limited enfranchisement of convicted prisoners in custody should take place, with
eligibility determined on sentence length. Attaching entitlement to vote to sentence length was considered to
benefit from establishing a clear relationship between the seriousness of the offence and suspension of the right to
vote.
The government proposed four options for enfranchisement based on sentence lengths of one to four years,
including one option which would involve an element of judicial discretion in deciding whether those serving
between two and four years’ imprisonment should be enfranchised. The proposals of the government would have
the following effect: enfranchisement of all prisoners serving less than one year would enfranchise 11 % of the
prison population; enfranchisement of all prisoners serving less than two years would enfranchise 22 %; and
enfranchisement of all prisoners serving less than four years would enfranchise 45 % (these figures are
approximate as further work is required to ascertain the numbers held under the various sentence lengths in
Northern Ireland and Scotland). The consultation paper indicated that the government remains inclined towards
setting the threshold toward the lower end of these options. The second-stage consultation period ended on
29/09/2009.
The United Kingdom authorities now intend to undertake a detailed analysis of the responses received, and
determine the government’s approach to implementation of the judgment.
• Information is required on a regular basis concerning the United Kingdom authorities’ follow-up to the secondstage
consultation, and the progress of draft legislation.
4) Declaration of incompatibility: On 24/01/2007, the Registration Appeal Court, part of the Court of Session (the
highest civil court in Scotland), held that following the judgment of the European Court, Section 3§1 of the
Representation of the People Act 1983 was incompatible with the Convention and made a declaration of
incompatibility under the Human Rights Act 1998 to this effect (see Smith v Scott 2007 S.L.T. 137). On 20/04/2007
the Outer House of the Court of Session was asked to make a further declaration in light of the then imminent 2007
Scottish Parliamentary Elections. The case considered an Order made under the Scotland Act setting out voting
arrangements for those elections, which reflected the provisions of Section 3 of the Representation of the People
Act 1983. The Court of Session again recognised the incompatibility between the Representation of the People Act
with the European Convention noting the consequent disenfranchisement of around 7,000 people in the Scottish
Parliamentary elections, but considered that the Order was valid as the despite the rulings from the European
Court and Court of Session, the Representation of the People Act 1983 remained in force (see also Traynor &
Anor, Re Judicial Review [2007] ScotCS CSOH 78 (20 April 2007)). The Court of Session held that the matter of
the incompatibility had been determined in Smith and a further declarator (a declaration in Scots law) was
unnecessary and inappropriate. Similarly the domestic courts have dismissed judicial review applications from
prisoners in respect of the Northern Ireland Assembly elections in 2007 (Toner & Walsh [2007] NIQB 18) and the
European Parliamentary Elections in June 2009 (R (Chester) v Secretary of State for Justice & Wakefield DC
[2009] EWHC 2923 (Admin)).
5) Opinion of the Joint Committee of Human Rights: In its annual report for 2007 (Monitoring the Government's
Response to Human Rights Judgments: Annual Report 2007) the United Kingdom Parliament's Joint Committee of
Human Rights (JCHR) asserted that the delay in adopting measures to implement the judgment was
“disproportionate”, and highlighted that the continued failure to remove the blanket ban, enfranchising at least part
of the prison population, is “clearly unlawful” (§78 of the report). In its report for 2008, the JCHR criticised the
substantial delay in implementing this judgment and observed that there is now a significant risk that the next
general election will take place in a way that fails to comply with the Convention (§63 of the report).
In its scrutiny of the Political Parties and Elections Bill (report published on 01/02/2009), the JCHR drew attention to
a comment made by the Secretary of State for Justice on 20/01/2009 indicating that the lack of parliamentary and
political support for reform had contributed to the government’s approach. The JCHR noted in response that
despite the possible political difficulties “it remains for the government to take the initiative and to propose a
solution for parliamentarians to scrutinise”.
6) Comment from civil society:
a) Rule 9 submissions to the Committee of Ministers following the first-stage consultation:
The AIRE (Advice on Individual Rights in Europe) Centre noted on 03/04/2007 that despite having intimated that it
would embark upon a “full public consultation” regarding implementation of the Court’s judgment, the consultation
paper unequivocally stated that the government remained “wholly opposed” to full enfranchisement. Although the consultation paper offered the option of retaining the blanket ban (and welcomed receiving the views of those who agreed with this position), it excluded from consideration the possible option of abolishing disenfranchisement of prisoners altogether.
The United Kingdom government recalled that the (first-stage) consultation paper did state that views on total disenfranchisement were welcome but nonetheless made it clear, as noted above, that retaining the total ban was outside the margin of appreciation given by the Convention, and was therefore not an actual proposal. The
government specified that the judgment does not require total enfranchisement of prisoners and, as it was opposed to such an option, omitted to include this as a proposal in the consultation paper. The Prison Reform Trust, in a submission of 30/03/09, stated that the current position is unacceptable and to date, the United Kingdom has done nothing to execute the judgment. The problem of future violations is underlined in light of the upcoming general election in June 2010. In response, the United Kingdom made reference to the Second Stage Consultation.
b) Rule 9 submissions to the Committee of Ministers following the second-stage consultation: Rule 9 submissions were received from the applicant, the applicant’s legal representative, the Howard League for Penal Reform, Unlock, Penal Reform International, the National Council for Civil Liberties and the Prison Reform Trust.
All the submissions highlight the fact that the United Kingdom has not yet taken any concrete steps to implement this judgment and stress the concern of imminent similar violations if legislation is not passed before the 2010 general election. In this context, UNLOCK refers to public statements made by the authorities that no legislation will be passed before the general election. The Prison Reform Trust and UNLOCK criticise the Second Stage Consultation for pursing a limited approach that does not reflect responses from the public to the First Stage Consultation. The Prison Reform Trust also states that the consultation period is excessively long and effectively means that there is no possibility of passing legislation before the general election. In a combined response to the submissions received, the Ministry of Justice reiterated its position, as set out in the second-stage consultation paper. The government “remains of the view that – in light of the responses to the first policy consultation and the serious and difficult issues at stake - it would not be appropriate to enfranchise all prisoners, without taking account of the nature and seriousness of the offence they have committed”. Removal of the right to vote goes to the essence of the offender’s relationship with democratic society and reinstatement of the right is aimed at enhancing civic responsibility and respect for the rule of law. The government considers four years’ imprisonment to be a relevant threshold in determining whether the circumstances surrounding the offence
committed are sufficiently serious to warrant removal of the right to vote. The Consultation paper explains that although the Criminal Justice Act 2003 formally abolished 4 years’ imprisonment as being a distinction in sentencing policy terms between “less serious” and “serious” offences, in lay terms it may still be argued that it is still relevant as a dividing line, i.e. where a court has determined that the offence warrants a custodial term of 4 years, this will signify that the circumstances of the offence are sufficiently serious to warrant that length of
custodial term. All submissions have been circulated to the Committee of Ministers along with the response of the United Kingdom authorities and are available from the Secretariat.
The Deputies,
1. adopted Interim Resolution CM/ResDH(2009)160 as it appears in the Volume of Resolutions;
2. decided to resume consideration of this item at their 1078th meeting (March 2010) (DH) in the light of
further information to be provided by the authorities on general measures.
Comment: The CoM should publish their decision within 2 weeks on their website.
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