Prisoner voting: consultation

Hirst (No 2) and the ECHR

The ECHR is an international treaty intended to safeguard human rights and political freedoms in Europe. It was approved and signed by the founding members of the Council of Europe in November 1950, including the UK. It was ratified by the UK Parliament in 1951 and it came into force in September 1953. All member states of the Council of Europe are party to the ECHR.

The Council of Europe is a different international organisation from the European Union and therefore any outcome of Brexit does not alter the legal effect of the ECHR in the UK. The ECHR also established the ECtHR. Any person who feels that their rights under the ECHR have been violated by a state party signatory may take their case to the ECtHR.

In 2005, in the case of Hirst v United Kingdom (No 2), the Grand Chamber of the ECtHR noted the differences in electoral law relating to prisoner voting throughout Europe. The Court stated that member states should be afforded a significant degree of discretion (known as the "margin of appreciation") on how to deal with this issue. However, it ruled that the UK Government's blanket ban on prisoner voting was in breach of Article 3 of Protocol 1 of the ECHR^[4]. Whilst the UK's ban pursued the legitimate aim of disenfranchising prisoners as a means of encouraging responsible citizenship, the ECtHR found that the provisions employed in meeting that aim were not proportionate because the ban applied across the board, regardless of the nature of the offence or the length of the sentence.

Article 3 of Protocol 1 provides that member states:
"undertake 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."

This has been interpreted by the courts to give individuals rights, including the right to vote and to stand for election.

In Moohan v. Lord Advocate, the United Kingdom Supreme Court considered the case law of the ECtHR on prisoner voting. The Supreme Court found that Article 3 of Protocol 1 of the ECHR does not extend to referendums. This was later confirmed by the ECtHR in Moohan and Gillon v United Kingdom. The ECtHR has also confirmed, in the case of McLean and Cole v United Kingdom, that local authorities in the United Kingdom are not part of the "legislature" and therefore fall outside the scope of Article 3 of Protocol 1. Article 3 of Protocol 1 only applies to elections to a legislature held "at reasonable intervals". Therefore in the devolved Scottish context, this means Scottish Parliament elections.

In Moohan, the Supreme Court observed that the ECtHR has, on several occasions since the decision in Hirst (No 2), ruled that the blanket ban on prisoner voting is incompatible with the ECHR. The overarching principles which can be identified in the case law of the ECtHR since the decision in Hirst (No 2) are:

(i) that the basic principle which underpins Article 3 of Protocol 1 is universal suffrage;

(ii) that the right to vote may, however, be limited, provided that the limitations are imposed in pursuit of a legitimate aim and the means employed are not disproportionate;

(iii) that restrictions on the right of prisoners to vote may be justified in order to pursue the legitimate aims of preventing crime by sanctioning the conduct of convicted prisoners and of enhancing civic responsibility and respect for the rule of law; but

(iv) that the automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, is incompatible with Article 3 of Protocol No. 1 of the ECHR.

Within the margin of appreciation allowed to them, it is for individual States party to the ECHR to determine whether or not the right to vote of prisoners should be restricted, and, if so, what restriction would be appropriate having regard to the aim pursued.