Prisoners to vote in next general election, end of 5 year wait since Euro decision

1 November 2010 by

Updated | According to the Daily Telegraph, the prime minister has conceded that the government has no choice but to comply with a five-year-old European Court of Human Rights judgment and grant prisoners voting rights in the next general election.

The Telegraph reports:

on Wednesday a representative for the Coalition will tell the Court of Appeal that the law will be changed following legal advice that the taxpayer could have to pay tens of millions of pounds in compensation.

The decision, which brings to an end six years of government attempts to avoid the issue, opens the possibility that even those facing life sentences for very serious crimes could in future shape Britain’s elections.

Ministers are now examining ways that limits could be placed on which inmates can vote. They will push for strict conditions, including a ban on “lifers” and murderers from voting.

We have posted a number of times on this issue, most recently here.  In the 2005 decision of Hirst, the European Court held that Section 3 of the Representation of the People Act 1983, which prevents prisoners from voting, is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights. Under Article 46 of the European Convention of Human Rights, the UK is obligated to “abide by the final judgment” of the European Court of Human Rights.

It is still open to the government to impose limits on what kind of prisoners can and cannot vote, but in light of the recent case of Frodl v Austria, the categories of prisoners whose vote can legitimately be taken away may be fairly limited. In that case the court said that any restriction on voting rights must be proportionate to the end pursued, and “must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.” A prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“. In light of Frodl, it seems unlikely that the government will be able to restrict voting rights to those who have committed less serious offences.

The Council of Europe, which monitors compliance with European Court of Human Rights judgments, has been sending increasingly hard-edged warnings that the UK must comply with the 5-year-old judgment in Hirst No. 2 or face sanctions. It has also recently acquired stronger powers to punish disobedient states. This, along with the threat of thousands of compensation claims by disenfranchised prisoners (by the end of September, the Strasbourg court had received 1,340 such applications), will have been at the forefront of Mr Cameron’s mind in making the decision, and perhaps explains the Telegraph’s report that he is “exasperated” and “furious”.

The Hirst saga is interesting not just for the principles behind the judgment, but also because it brings to the fore the sometimes strained relationship between European and UK human rights law.

On the one hand, the UK has to apply the judgments because it is signatory to the European Convention. It has, on the whole, had a good record of doing so, and it is still fairly unusual for the Strasbourg-based court to rule against a decision of the UK courts on sensitive issues. Usually the UK is given a fairly wide margin of appreciation to legislate. But sometimes the Strasbourg court will take a strong line, and the UK has to fall into step. On this issue, it is notable that the UK is the only country in Western Europe which allows none of its prisoners to vote.

On the other hand, some will argue that the Human Rights Act, which incorporated the European Convention on Human Rights directly into UK law, has given UK citizens sufficient access to a human rights remedy without having to appeal to Europe. And, after all, the UK courts will probably have a better understanding of sensitive domestic issues than Strasbourg. This begs the question as to why we still need a supranational human rights court at all. The Human Rights Act provides that UK courts must “take into account” Strasbourg decisions, but need not follow them. The Supreme Court is currently considering how this system should operate, and whether lower courts should be able to follow Strasbourg decisions directly, in relation to the retention of DNA evidence by the police. The point is that following the Human Rights Act, which is only a decade old, the relationship with the Strasbourg court is still in flux.

Ultimately the latter argument ignores the fact that we willingly signed up to the European Union, and whilst this is not a pure federal system along the lines of the United States, where the decisions of national institutions will always trump those of individual states, it is a system which relies on a foundation of common values and rights which cross borders. This includes the system of human rights law, which benefits from the occasional cross-pollenation of ideas across states. In any event, post-Human Rights Act, human rights law happens mostly within our domestic courts. The simple point is that short of withdrawing from the European Convention, which nobody is seriously advocating, there was little the UK could do to avoid implementing the Hirst judgment. The only surprise is that it has taken so long.

Update, 2 Nov 2010 – Listen to John Hirst (of the Hirst case and the Jailhouse Lawyer blog) and Lord Falconer debating the issue on Radio 4’s Today Programme, and read Afua Hirsch’s comment piece from here.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more


  1. Chris Usher says:

    what are they scared of, 80,000 people spread over the whole country, probably not the most motivated people to vote anyway. Has anyone ever surveyed likelihood of this population to vote and their voting intentions? – oh I forgot the daily mail headline “murderers and child killers make our laws”

  2. Ed Bates says:

    Thanks for this.
    NB. With reference to the comment that we “willingly signed up to the European Union” – the ECHR was drafted within the Council of Europe, not the European Union.

    Ed Bates.

  3. Ian Orlebar says:

    Will the Govt now also inform the Supreme Court that it will comply in full with Judgment 215 [GC] of the ECtHR (“Marper”)?

    1. Carl Gardner says:

      It already has done.

  4. John Hirst says:

    “Ministers are now examining ways that limits could be placed on which inmates can vote. They will push for strict conditions, including a ban on “lifers” and murderers from voting”.

    What part of it’s not the seriousness of crime or length of sentence which attaches to this human right does the government not understand?

    Hirst: manslaughter

    Frodl: murder

    The two worst crimes on the statute book cannot remove the human right to the vote.

    There must be a link between the crime and punishment, for example, electoral fraud before the human right can be removed for the duration of imprisonment.

    No more wasting time and money trying a damage limitation exercise. I spent 12-15 years ensuring that there was no legal loophole.

    I am looking forward to payback time.

    It would be nice if Dave now flew the White Flag of Surrender outside Number Ten :-)

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: