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Government will give prisoners the vote, 12 years after ECtHR’s famous Hirst ruling

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Proposals will only impact least serious offenders

The government is reportedly about to make a U-turn on prisoner voting, an issue often relied upon to demonstrate national sovereignty over ‘meddling’ European courts.

As things stand, offenders in prison are legally incapable of casting votes in parliamentary or local government elections, this thanks to section 3 of the Representation of the People Act 1983.

The European Court of Human Rights (ECtHR) has long expressed its disdain with this absolutist position. In the 2005 case of Hirst, which law students will recall from their human rights studies, the ECtHR said:

“[T]he right to vote is not a privilege. In the 21st century, the presumption in a democratic state must be in favour of inclusion… Universal suffrage has become the basic principle.”

The court held by 12 votes to five that the United Kingdom’s position violated article 3 of protocol 1 (the right to free and fair elections). A prisoner does not forfeit their rights merely because of their prisoner status, the court held, “nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”.

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Strong words from the ECtHR but the offending section 3 remains. Successive governments have consistently failed to implement the ruling, former Prime Minister David Cameron once famously saying the notion of giving prisoners the vote makes him feel “physically sick”.

This 12-year legal wrangle is often used to demonstrate the ECtHR’s soft law status, section 4 of the Human Rights Act 1998 making clear a declaration of incompatibility is not binding law in the same way a European Court of Justice ruling is, for example.

But now it seems the government is coming alive to the Hirst ruling. According to The Sunday Times, Justice Secretary David Lidington has circulated plans among ministers which give some prisoners the vote. These proposals only relate to prisoners sentenced to less than a year who are let out on day release. John Hirst, the applicant in his namesake ECtHR case, was sentenced to a term of discretionary life imprisonment after pleading guilty to the voluntary manslaughter of his landlady.

So while the proposals will not impact the most serious offenders, they reportedly will affect “hundreds” of prisoners. A senior government source said:

“This will only apply to a small number of people who remain on the electoral roll and are let out on day-release. These are not murderers and rapists but prisoners who are serving less than a year who remain on the electoral roll.”

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