News feature: UK prisoners and the right to vote

News feature: UK prisoners and the right to vote

December 2010

Matthew Evans, managing solicitor at the Prisoners’ Advice Service, writes:

As things stand, the UK’s 85,393-strong prison population (all avowed Conservative party voters, according to some media reports) are barred from voting in elections under Representation of the People Act 1983 s3. In Hirst v UK (No 2) App No 74025/01, 30 March 2004, the European Court of Human Rights (ECtHR) ruled unanimously that the maintenance of an absolute bar on convicted prisoners voting was in breach of article 3 of Protocol No 1 to the European Convention on Human Rights (right to free and fair elections).

The UK government appealed the decision unsuccessfully before the ECtHR Grand Chamber. Following the appeal, the then Labour government commenced – without much enthusiasm – two consultations (in December 2006 and April 2009) over whether or not to give prisoners the vote. Eventually, Jack Straw, the then Lord Chancellor and Secretary of State for Justice, proposed that the right be granted to all prisoners except those convicted of serious violent and sexual offences.

In 2009, a post-tariff mandatory life sentence prisoner applied for judicial review of a decision to refuse to register him on the electoral register in order to be able to vote in the June 2009 European elections (R (Chester) v (1) Secretary of State for Justice (2) Wakefield MDC [2009] EWHC 2923 (Admin), 28 October 2009). The application was dismissed. According to the court, the enfranchisement of post-tariff life sentence prisoners was a matter for parliament; as the shape and nature of the proposed legislation is as yet undecided, it would be inappropriate for the court to interfere with the parliamentary process. The court added that any proposal for electoral reform would have to be consistent with the ECtHRs’ decision in Hirst concerning the blanket ban on the right of prisoners to vote.

Currently, therefore, domestic proceedings are bound to fail in light of Chester (an appeal is to be heard next month). A number of prisoners have issued compensation claims in the ECtHR and in the UK courts. Strasbourg has a strict six-month time limit; as a consequence, an application must be lodged within six months of the UK’s general election. Those who have sued in the UK have met various responses: some courts have refused to issue decisions and the government is seeking to strike out Greens and MT v UK App Nos 60041/08 and 60054/08, 23 November 2010, the lead case, which is listed to be heard on 9 February 2011 (ie, after Chester is heard in the Court of Appeal).

Meanwhile, the ECtHR has hundreds (now possibly thousands) of cases pending. The court has named three lead cases to be heard next year, and it is staying all other cases. The Committee of Ministers, which oversees ECtHRs’ judgments, has spoken in ever-increasing frustration of the UK’s failure to amend its system; however, at its last meeting, the committee also expressed concern that the ECtHR was now being swamped with applications, which also puts pressure on the UK to comply with Hirst. Kenneth Clarke, the present Lord Chancellor and Secretary of State for Justice, said in response to questions that there is no suggestion that all prisoners will have the right to vote but consideration is being given to how to implement the ECtHRs’ ruling to avoid a deluge of compensation claims.

However, for the supporters of prisoners’ right to vote, the matter has little to do with compensation and is more a question of moral conscience. They argue that if prisoners are excluded from voting we do not have a democratic society, we are just paying lip service to one.