The May General Election will be Incompatible with Prisoners' Human Rights - What are the implications?

Introduction

With the general election having been called to take place on 6 May this year, it is likely that, on the date of the general election, there will be thousands of sentenced prisoners who will be prevented from voting. This remains the case, despite warnings from the European Court of Human Rights (ECtHR), the Committee of Ministers of the Council of Europe and the Joint Committee on Human Rights in the UK that the UK provision imposing a "blanket ban" on voting by any sentenced prisoner is incompatible with the European Convention on Human Rights (ECHR).

This issue has been, and continues to be, the subject of much debate and, as politicians prepare for the general election, they are being reminded of the potential consequences of failing to fully address this issue before votes are cast. It has been suggested that prisoners could sue if they are not allowed to vote in this year's general election, but could there be other concerns for MPs who are voted in by an electorate that has been established, in part, by a provision which has been held by the ECtHR as unlawful?

A reluctance to take action

In the UK, sentenced prisoners have been prevented from voting for over 140 years. The most recent legislation, section 3 of the Representation of the People Act 1983, provides that a convicted prisoner is "legally incapable" of voting at any parliamentary or local government election while serving his sentence in prison.

There are many arguments both for and against the ban on sentenced prisoners voting. Some argue that removing the right to vote from prisoners is part of their punishment, an argument that is often met by the assertion that this contradicts the basic idea that we are all political equals.

Over the years, politicians from political parties across the board have supported the blanket ban on voting by sentenced prisoners. Although, more recently, some opinions are moving away from the traditional views, no action has been taken to remove the blanket ban that has been in force for over a century.

Steps taken so far

The UK courts accepted the prohibition on prisoners' votes until 2004 when the ECtHR decided the case of Hirst v United Kingdom (No 2) in which a prisoner successfully challenged the blanket ban. The ECtHR decided that an absolute bar on voting by any serving prisoner in any circumstances breached Article 3 of Protocol No. 1 of the ECHR. That Article provides that parties to the Convention undertake to "hold free elections at...