Prisoners' voting rights

In 2005 the European Court of Human Rights (ECtHR) ruled that the UK was in breach of Article 3 of Protocol No 1 of the European Convention on Human Rights in relation to prisoner voting rights. The issue remained unresolved until 2018.

In December 2017 the UK Government came up with proposals that the Council of Europe said were sufficient to signify compliance with the 2005 ruling. The Council finally closed the case in September 2018.

This briefing explains the current prisoner voter rules, discusses the 2005 ECtHR ruling and the political debate it sparked about prisoner voter rights. It also gives details of the provisions to allow some prisoners to vote in local and devolved elections in Scotland.

For more detail on events before 2015, see the Library briefing paper Prisoners’ voting rights (2005 to May 2015).

The current rules

Section 3, Representation of the People Act 1983, as amended, prevents convicted individuals detained in prison and mental health hospitals from registering to vote in UK Parliament and English, Welsh and Northern Irish local elections.

The wording of section 3 of the 1983 Act excludes unconvicted prisoners and those serving their sentence in the community from the ban. This means the following prisoners can vote:

• those held on remand awaiting trial/ sentencing
• civil prisoners– normally those in prison for failure to pay fines or debts or contempt
• offenders on home detention curfew or released on temporary licence.

The franchise for local elections in Scotland and Wales is devolved.

The Scottish Parliament legislated in this area in 2020. Scottish prisoners ordinarily be resident in Scotland serving a sentence less than 12-months are now eligible to vote in Scottish Parliament, local and national park elections.

The Senedd Cymru has not yet reformed prisoner voting rights for devolved elections in Wales, but has said it will continue to consider it as a longer-term priority.

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The challenge

In 2001 the ban was challenged by three convicted prisoners. The domestic courts rejected the challenge and one of the prisoners, John Hirst, then took his case to the ECtHR.

On 6 October 2005, in the case of Hirst v United Kingdom (No 2), the ECtHR ruled that the UK’s ban on all serving prisoners from voting contravenes Article 3 of Protocol No 1 of the European Convention on Human Rights (ECHR), which provides that signatory states should “hold free elections … under conditions which will ensure the free expression of the opinion of the people”.

The central element to the ECtHR ruling was that the UK’s blanket ban on prisoner voting was indiscriminate and disproportionate.

The debate

The Hirst (No 2) judgment set off a political debate. This debate has largely focused on the constitutional issues raised by the judgment, in particular: the UK’s relationship with the ECtHR; reform of the Human Rights Act 1998; and the importance of parliamentary sovereignty.

Hirst (No 2) is regarded by some as an example of the ECtHR overstepping its proper role and encroaching upon Parliament’s legislative authority. The judgment has also been criticised by some as an example of the misuse of human rights, in the sense that the ECtHR’s interpretation of Article 3 of Protocol No 1 went beyond the drafters’ intentions.

The 2005 Labour Government considered the ban on prisoners voting was appropriate but was conscious of the need to meet its obligations under international law to rectify the contravention of Article 3. In the 2005 Parliament, the Labour Government issued two consultations, one in 2006 and one in 2009. It did not bring forward final proposals before the 2010 General Election.

In 2012, the Coalition Government of 2010-15 published a draft Bill which gave three options for the right to vote in UK Westminster Parliamentary and European Parliament elections: the status quo – an outright ban; a ban for prisoners sentenced to 4 years or more; or a ban for prisoners sentenced to more than 6 months.

In 2013, a Joint Committee scrutinising the Bill recommended that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections. The Government did not formally respond, and these proposals were not taken forward.

The Conservative Government’s Queen’s Speech in May 2015 did not refer to any plans to change the existing legislative position, and David Cameron subsequently implied that the blanket ban on prisoners’ voting rights would not be changed while he remained Prime Minister.

In December 2015, Michael Gove indicated that the Government would, in 2016, produce a substantive response to the 2013 report by the Joint Committee on the draft Voting Eligibility (Prisoners) Bill, after the publication of the consultation on reform of the Human Rights Act 1998. Neither a response to the Committee nor a consultation on the Human Rights Act 1998 was published.

The solution

Following further calls from the Council of Europe’s Committee of Ministers to resolve the impasse, the then Secretary of State for Justice, David Lidington, published proposals in November 2017. These proposals were more limited in scope than those included in previous proposals. The main change proposed was to make administrative changes which allowed prisoners released on temporary licence to vote. In December 2017 the Council of Europe welcomed the proposals, agreeing to them as an acceptable compromise that would address the issues raised by Hirst (No 2).

The Government intended to implement the proposed changes by the end of 2018. It agreed to report back to the Council of Europe’s Committee of Ministers by September 2018. The Council of Europe confirmed that the case was closed at its meeting of September 2018.