Sentenced prisoners in the UK must be given the right to vote in six months according to a European Court judgment announced on Tuesday.

The ruling in the case of Scoppola v Italy (No 3) makes clear that most sentenced prisoners in the UK have the right to vote. It upholds the principles set out in the original Hirst (No 2) judgment, in particular that the disenfranchisement of “a group of people generally, automatically and indiscriminately, based solely on the fact that they were serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, is not compatible with Article 3 of the Protocol No 1” of the European Convention on Human Rights.

The government must now bring forward proposal by the end of November to comply with the Court’s judgment or it will be in breach of its legal obligations under the European Convention.

Commenting, Juliet Lyon, Director of the Prison Reform Trust, said:

“People are sent to prison to lose their liberty not their identity. The UK’s outdated ban on sentenced prisoners voting, based on the 19th century concept of civic death, has no place in a modern democracy and is legally and morally unsustainable. Experienced prison governors and officials, past and present bishops to prisons and chief inspectors, electoral commissioners, legal and constitutional experts and most other European governments believe people in prison should be able to exercise their civic responsibility. The European Court has made clear in today’s judgment the UK’s legal obligations to overturn the blanket ban.”

The UK’s blanket ban on prisoners voting remains in place despite the European Court ruling it unlawful in March 2004. The law is a relic from the 19th century, dating back to the Forfeiture Act of 1870 and is based on the notion of civic death, a punishment entailing the withdrawal of citizenship rights.

Over the past eight years since the ban was declared unlawful the UK government has repeatedly sought to delay implementation of the European Court judgement. Following the judgment of the European Court in 2004, the Hirst case, and the Grand Chamber judgment in 2005 (Hirst No 2), that the UK's current ban on all serving prisoners from voting contravenes Article 3 of Protocol No 1 of the European Convention on Human Rights, the Labour government carried out a two stage consultation process on options for a change in policy.

However, despite repeated reminders to comply with the judgment by a number of official bodies including the UK Parliament’s Joint Committee on Human Rights, the UN Human Rights Committee; and civic society groups including the Prison Reform Trust, UNLOCK (the National Association of Reformed Offenders), Liberty, Penal Reform International and the Aire Centre, nothing was done to change the law before the general election on 6 May 2010.

In June 2010 the Council of Europe’s Committee of Ministers expressed “profound regret” that the ban had not been lifted in time for the 2010 general election. In December 2010 the Committee of Ministers “expressed hope that the elections scheduled for 2011 in Scotland, Wales and Northern Ireland can be performed in a way that complies with the Convention.” On 20 December 2010 the government announced that it would bring forward legislation to allow those offenders sentenced to a custodial sentence of less than four years the right to vote in UK Parliamentary and European Parliament elections, unless the sentencing judge considered this inappropriate.

A backbench debate was held in the House of Commons on Thursday 10 February 2011. MPs voted in favour of a motion, sponsored by the former home secretary Jack Straw and former shadow home secretary David Davis, to support the continuation of the current ban.

On 1 March 2011 the Government referred the latest ECHR ruling on the issue, the Greens and MT judgement, to the Grand Chamber of the European Court of Human Rights; this in effect appealed the Court’s decision that the UK had six months to introduce legislation to lift the blanket ban. On 11 April 2011 the request for an appeal hearing was dismissed and the Court gave the UK government six months from this date to introduce legislative proposals. On 6 September 2011 the Government announced that it had requested an extension to this deadline to take account of the referral of Scoppola v Italy (No 3) (a case similar to that of Greens and MT) to the Grand Chamber. The Government was notified on 31 August 2011 that the Court had granted an extension of six months from the date of the Scoppola judgment.

The UK is out of step with all but five Council of Europe countries, as well as many developed states around the world, when it comes to prisoners voting.

In South Africa, all prisoners have the right to vote. Handing down a landmark ruling in April 1999, the constitutional court of South Africa declared:

"The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts."

Practically, there would be few difficulties in expanding the arrangements already in place to enable remand prisoners to vote to the rest of the sentenced prison population. The electoral commission set out, in its response to the Ministry of Justice's second consultation on prisoners voting in 2009, a mechanism by which prisoners could be enfranchised though a system of postal or proxy voting. Through its own audit procedures the Ministry of Justice has been systematically seeking prisoners' level of interest in voting and is known to have received positive responses.

The former Lord Chancellor, Lord MacKay, has criticised the UK’s failure to comply with the judgment. In evidence to the House of Common’s Parliamentary and Constitutional Reform Committee on 1 February, he said:

“The [European] Convention ... was initiated ... to deal with the ... terrible persecution of minorities in Germany ... If we believe in the rule of law, we are just as much bound to observe the decisions of the European Court on matters within their competence as we are to obey the decisions of our own courts in matters within their competence.”

Thomas Hammarberg, the Commissioner for Human Rights at the Council of Europe, has stated:

“Prisoners, though deprived of physical liberty, have human rights ... Measures should be taken to ensure that imprisonment does not undermine rights which are unconnected to the intention of the punishment.”

The Archbishop of Canterbury, Dr Rowan Williams, spoke of the importance of regarding prisoners as citizens at a meeting last year of the all party parliamentary penal affairs group:

"The notion that in some sense, not the civic liberties but the civic status of a prisoner is in cold storage when custody takes over is one of the roots of a whole range of issues around the rights of prisoners."

The past president of the Prison Governors' Association said:

"The blanket ban on sentenced prisoners' voting is out of step in a modern prison service and runs counter to resettlement work which aims to ensure that prisoners lead a responsible, law-abiding life on release."

Dr Peter Selby, former Bishop to HM Prisons and now President of the National Council for Independent Monitoring Boards for Prisons has stated that:

“Denying convicted prisoners the right to vote serves no purpose of deterrence or reform. What it does is to state in the clearest terms society’s belief that once convicted you are a non-person, one who should have no say in how our society is to develop, whose opinion is to count for nothing. It is making someone an “outlaw”, and as such has no place in expressing a civilised attitude towards those in prison.”

The Catholic Bishops of England and Wales also support the view that prisoners should have the right to vote. Their report, A Place of Redemption, states that:

“Prison regimes should treat prisoners less as objects, done to by others, and more as subjects who can become authors of their own reform and redemption. In that spirit, the right to vote should be restored to sentenced prisoners.”

Notes

1.    The Grand Chamber judgment in the case of Scoppola v Italy (No 3) is available here.

2.    On 18 May 2012, the prison population in England & Wales stood at 86,308. The vast majority are sentenced prisoners who are denied the right to vote.

3.    The electoral ban on sentenced prisoners is contained in Section 3 of the Representation of the People Act 1983, as amended by the Representation of the People Acts 1985 and 2000. The ban dates back to the Forfeiture Act of 1870.

4.    Protocol 1, Article 3 of the European Convention on Human Rights guarantees “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 guarantee is now contained in the Human Rights Act, which became part of the law throughout the UK on 2 October 2000.

5.    In April 2001 the High Court rejected a case demanding enfranchisement of prisoners. In March 2004 the European Court of Human Rights ruled unanimously against the UK government’s blanket ban on sentenced prisoners voting; the government’s subsequent appeal to the Grand Chamber of the European Court was dismissed in October 2005 (Hirst vs the United Kingdom (No 2)).

6.    The UK is out of step with most other European countries. Around 40 per cent of the countries in the Council of Europe have no restrictions on prisoners voting. Many others only ban some sentenced prisoners from voting. In France and Germany, courts have the power, rarely exercised, to impose loss of voting rights as an additional punishment. The UK is only one of a handful of European countries that automatically disenfranchise all sentenced prisoners, the others including Bulgaria, Estonia, Hungary, Georgia and Liechtenstein.

7.    The only other adult nationals who cannot vote in general elections are hereditary peers who are members of the House of Lords, life peers, patients detained in psychiatric hospitals as a result of their crimes and those convicted in the previous five years of corrupt or illegal election practices. Remand prisoners, people imprisoned for contempt of court and fine defaulters held in prison are eligible to vote.

8.    People held in prison on remand can vote. The Prison Service does not envisage practical problems in enabling sentenced prisoners to vote. The Electoral Commission has set out in its response to the Ministry of Justice’s second consultation on prisoners voting in 2009 a mechanism by which prisoners could be enfranchised though a system of postal or proxy voting, involving a modification to the existing declaration of local connection in electoral law. A copy of the Electoral Commission’s response can be read here.