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Prisoners Vote in United Kingdom

Background

Since 1969 no convicted prisoner in the United Kingdom has been allowed to vote. This prohibition was imposed, without debate, by the Representation of the People Act 1969. For two years before that there was no statutory bar to prisoners voting by post, albeit that there were, in many cases, administrative restrictions that prevented them from doing so. Article 3 of the First Protocol to the European Convention on Human Rights, to which the United Kingdom is party, provides that:

‘The High Contracting Parties 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.’

In 2004 the Grand Chamber of the European Court of Human Rights, in the case of
Hirst v United Kingdom (No 2), held that the blanket ban on prisoners voting violated Article 3 of the First Protocol. The United Kingdom was under a duty to give at least some prisoners the vote.

Reaction

This decision provoked what Sir Nicolas Bratza, the then President of the Court, described as a virulent attack on the judges of the Strasbourg Court. In a lecture that he delivered in 2011, (Sir Nicolas Bratza, ‘The Relationship between the UK Courts and Strasbourg’ (2011, EHRLR 505) he went on to say:

‘The vitriolic – and I am afraid to say xenophobic – fury directed against the judges of my Court is unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years. We are, as a Court, not unused to criticism by Governments who think we have gone too far, by unsuccessful applicants and by NGOs, who think we have not gone far enough, and by certain sections of the media that miss no opportunity to attack the Court, often in intemperate and in inaccurate terms. But the scale and tone of the current hostility directed towards the Court, and the Convention system as a whole, by the press, by members of the Westminster Parliament and by senior members of the Government has created
understandable dismay and resentment among the judges in Strasbourg.’

On 10 February 2011 the House of Commons had a debate about the decision in Hirst v United Kingdom. On a free vote a resolution was agreed to by 234 votes to only 22. This stated that ‘legislative decisions of this nature should be a matter for democratically-elected law makers’.

The resolution went on to express support for ‘the current situation in which no prisoner is able to vote…’

Supranational court to police the Convention

Article 19 of the Convention made provision for a supranational court to police the Convention. Pursuant to this there was created a Court at Strasbourg to which individual citizens could bring applications against their own States for infringements of their human rights. The United Kingdom signed up to this right of individual petition in 1966, but not until 1999 did Parliament enact the Human Rights Act, which incorporates the Convention rights into our domestic law.

This Act imposes an obligation on the executive to observe the Convention rights and entitles individuals to sue the executive if it fails to do so. When ruling on such suits the United Kingdom courts are required by the Act to take into account the jurisprudence of the Strasbourg Court. In a case called Ullah, Lord Bingham declared: ‘the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less’.

That case has provoked the more severe reaction. Mr Cameron has said that the idea of a prisoner voting makes him feel sick and the House of Commons, in the resolution to which I referred at the beginning of this lecture, has passed a resolution defying Strasbourg. More recently, a joint Parliamentary Committee, on which I served as the only cross-bencher, sat to
advise Parliament on the appropriate response to Strasbourg’s judgment in Hirst v United Kingdom.

The Committee Report

According to Lord Phillips of Worth Matravers (1), “the primary issue proved to be not whether the decision in Hirst was good or bad. It was whether Parliament should pass an Act that deliberately flouted the decision, or pass an Act that gave effect to it. International law requires this country to comply with decisions of the Strasbourg Court, because we signed up to a Convention agreeing to do just that. But it is a fundamental principle of the (UK) unwritten constitution that Parliament is supreme, and some members of the Committee felt strongly that Parliament should demonstrate that supremacy by defying the Strasbourg Court.”

The Committee advised that Parliament should comply with the judgment in Hirst by giving the vote to any prisoner sentenced to less than 12 months’ imprisonment. This is how the Report
dealt with the issue of principle:

‘…the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights. Parliament remains sovereign, but that sovereignty resides in Parliament’s power to withdraw from the Convention system. While we are part of the system we incur obligations that cannot be the subject of cherry picking… A
refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would give succor to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such action as setting a precedent that they may wish to follow.’

Resources

See Also

Prision
ECHR and the United Kingdom
Brighton Declaration of the European Court of Human Rights
English Court System
History of English Court System
Extradition

Notes and References

  1. European Human Rights – A Force for Good or a Threat to Democracy?. The Rt Hon the Lord Phillips of Worth Matravers

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Schema Summary

  • Article Name: Prisoners Vote
  • Author: International
  • Description: Background Since 1969 no convicted prisoner in the United Kingdom has been allowed to vote. This prohibition was imposed, [...]

This entry was last updated: August 18, 2015



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