Prisoners’ Right to Vote

In the case of Smith v Scott 2007 SC 345;  2007 SLT 137;  2007 SCLR 268 a successful application was made for a declarator of incompatibility in respect of the statutory blanket prohibition in prisoners voting a Scottish and UK Parliamentary Election.

On behalf of a Taylor & Kelly client, application was made to the Electoral Registration Officer for inclusion on the Electoral Roll.  This refusal was appealed to the local Sheriff at Alloa Sheriff Court and subsequently to the Registration Appeal Court.

The Government have failed to remedy that breach and this has been the subject of criticism:

  1. Before the Joint Committee on Human Rights: on 7th October 2008 here; on 27th January 2009 here and 26th March 2010 here.
  2. Before the European Committee of Ministers on 5th June 2009 here ; on 3rd December 2009 here and on 4th March 2010 here.
  3. Read the submissions of Liberty and the Association of Members of Independent Monitoring Boards to the Comittee of Minsiters here
  4. Read the submission of UNLOCK and the Prison Reform Trust to the Committee of Ministers here
  5. By Written Question from a member of the Parliamentary Assembly to the Committee of Ministers for consideration on 24th February 2010 here.
  6. The Committee of Ministers, on 7th June 2010, has expressed profound regret at the General Election taking place on a convention incompatible footing here.
  7. Read the House of Lords debate on the subject on 9th June 2010 here
  8. The Committee of Ministers once again, on 16th September 2010, expressed its deep regret at the failure of the UK Government to respond to the clear decision of the European Court of  Human Rights.  It recorded the absence of  “tangible and concrete information”  about what the Government was doing to implement the judgement of the Court.  The Committee note that the Court had communicated three cases to the Government with a view to adopting the pilot judgment procedure.  Over 1340 applications have been received by the Court.  Read the resolution adopted by the Comittee of Ministers here.
  9. Read another House of Lords debate on the question: to ask Her Majesty’s Government what action they are taking to comply with the judgment of the European Court of Human Rights on the voting rights of prisoners on 18th October 2010 here
  10. The House of Commons debated the matter on 2nd November 2010 here
  11. The Prime Minister was questioned about the topic on 3rd November 2010.  Read it here
  12. Read the evidence given by Mr Kenneth Clarke MP [Lord Chancellor] before the Joint Comittee of Human Rights on 16th November 2010 here [Q36 on prisoners right to vote]
  13. Read the draft resolution of the Committee on Legal Affairs and Human Rights condemning the government’s continued failure to implement the Grand Chamber decsion in Hirst here
  14. Read the resolution adopted by the Comittee of Minsters on 2nd December 2010 here
  15. Read the Ministerial Statement on 20th December 2010 by The Parliamentary Secretary, Cabinet Office (Mr Mark Harper) here.
  16. Read the ministerial statement on 20th December 2010 by  The Minister of State, Ministry of Justice (Lord McNally) here
  17. Read the Westminster Hall debate of 11th January 2011 here
  18. Read the House of Commons debate of 10th February 2011 here
  19. Read Written Answer by Mark Harper, Under Secretary for Constitutional and Political Reform 28th March 2011 here
  20. Read PM David Cameron on 11th May 2011 here

Further challenges were made before the domestic courts on the basis of this continuing incompatibility with convention rights:

XY v Scottish Ministers: 2007 SLT 657; 2007 S.C. 631; 2007 SLT 566.  On the basis that the ‘act’ of the Scottish Ministers in recalling a petitioner to custody was incompatible with convention rights in that it rendered that person incapable of excercising his right to vote.  Read what Lord Macolm said about this challenge here and what the Inner House of the Court of Session said here

Traynor & Fisher v Scottish Ministers:[2007] CSOH 78.  A challenge to the Executive promulgating secondary legislation in connection with the Scottish parliamentary elections, again as being an ‘act’ incompatible with convention rights.  Read Lord Malcolm’s decision here.

There has been a further (unsuccesful) challenge on the domestic front:  R (Chester) v 1. Secretary of State for Justice 2. Wakefield Metropolitan Prison [2009] EWHC 2923 (Admin) which can be read here

The Court of Appeal refused the prisoner’s appeal against the High Court decision: Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) which can be accessed here

A further application on behalf of a number of prisoners has been rejected: Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB) (18 February 2011) which can be accessed here

An application to judicially review a refusal to include a serving prisoner on the electoral roll was lodged with the Court of Session.  Lord Tyre refused interim orders and dismissed the petition.  Read his judgement here.  Read the Human Rights blog about this case here

An appeal against this decision was refused by the inner House of the Court of Session on 8th November 2011.  Read the judgement here. An appeal has been taken to the UK Supreme Court

Greens & MT v United Kingdom

European Court of Human Rights

Applications have now been submitted to the European Court of Human Rights and a number of these have been communicated to the United Kingdom Government.  See: Greens v United Kingdom here.

The European Court of Human Rights issued its decision in Greens & M.T. v United Kingdom on 23rd November 2012.  Read the judgement here.

On 1st February 2012, an application was submitted requesting referral of the case to the Grand Chamber.

On 22nd February 2011 the UK also made application to have the case referred to the Grand Chamber.  Read the application here

On 11th April 2011 the Grand Chamber declined to hear the case.  Read the press release here.  The judgement this became final on 11th April 2011 and the timetable laid down by the Court operates from this date.  Responsibility for the enforcement of the judgement passes to the Committee of Ministers.

Read the correspondence between United Kingdom authorities and the Registry of the European Court concerning the case of Greens and M.T. against the United Kingdom here

The Committee of Ministers agreed to a relaxation of the timetable – providing now that the previous deadline has been extended to 6 months after delivery of the Grand Chamber judgement in Scoppola No3.  Read their decision here

Scoppola No.3

The Grand Chamber issued its judgement on 22nd May 2012.  Read it here.  It reaffirmed the decision in Hirst.  The continued exclusion from the franchise of all prisoners in the United Kingdom remains a violation of the Convention.

The United Kingdom government must legislate to remove it in order to comply with the execution of judgement by the Committee of Ministers in Greens & MT

On 22nd November 2012 the UK Government published the Voting Eligibility (Prisoners) Draft Bill.  Read it here.

A Joint Committee of both Houses of Parliament has been established to conduct pre-legislative scrutiny of the Bill.  The Committee’s page is here. The closing date for submissions to the Committee is 13th June 2013

The Joint Committee has had adjourned the outdate set for completion of tis report to 18th December 2013

Thereafter the government will consider the report of the Committee and then, perhaps, introduce a Bill (which is then subject to Parliamentary scrutiny – and amendment) Read the letter from the Secretary of State for Justice here

On 6th December 2012 the Committee of Ministers considered the UK Government’s response to date.  Read the report here.

On 12th March 2013 the European Court of Human Rights adjourned consideration of the outstanding 2,354 cases until, at the latest, 30th September 2013 in view of the Committee of Ministers decision of 6th December 2012

On 26 September 2013 the Committee of Ministers:

“1. noted with interest that the pre-legislative scrutiny of the government’s proposals will be completed by 31 October 2013 at the latest, which will be a significant step towards the execution of this group of cases;

2. underlined, in light of both the next elections in May 2014 as well as the significant number of repetitive applications pending before the Court, the urgency of bringing the legislative process to a conclusion;

3. urged the authorities, accordingly, to provide information on the proposed timescale for the enactment of the relevant legislation without further delay;

4. decided to resume examination of the progress made at their 1186th meeting (December 2013) (DH).”

On 23rd October 2013 the ECtHR confirmed that the Chamber has decided not to further adjourn the 2,280 outstanding cases.

on 30th October 2013 watch Tony Kelly giving evidence to the Parliamentary Committee considering the draft Bill on prisoner voting/

On 6th November 2013 the UK government asked the Court to reconsider the decisions of 23rd October 2013 to not further adjourn the 2,280 cases frozen

On 5th December 2013 the Committee of Ministers:

“1. welcomed that the Secretary General of the Council of Europe attended to give evidence before the parliamentary committee on 6 November 2013;

2. expressed their serious concern about the on-going delay in the adoption of legislation to comply with the Convention;

3. noted with concern that the European Court has therefore found it necessary to decide not to further adjourn the proceedings in all similar applications pending before it;

4. urged the United Kingdom authorities to rapidly comply with the judgment by adopting legislation to ensure that future elections are held in compliance with the Convention, thus avoiding new repetitive applications before the European Court;

5. decided to resume consideration of these questions at their 1193rd meeting (March 2014) (DH).”


Read the Guardian here

Read the ECHR blog here

Read the UK Human Rights blog here

Read the House of Commons debate on 23rd November 2010 here

Read a House of Commons Library note on the issue of Prioner’s Voting Rights (issued 23rd June 2010) here.

Read Philip Johnston, Assistant Editor of the Daily Telegraph on 20th September 2010 here

Read ’There is no get-out-of-jail card on prisoners’ rights’ by Ian Bell, The Herald 2nd November 2010 here

Read The Guardian 23rd November 2010 here

The UK now lags behind Kenya which has given its prisoners the right to vote.  See the BBC report here.  Read the judgement of the High Court of Kenya here.

Read the UK Human Rights Blog on the ‘unappealing tactic’ of the UK government here

The Prison Reform Trust and UNLOCK have published a briefing paper  entitled “Barred from Voting” which can be accessed here

Read the Economist here

Read The Council of Europe’s Commissioner for Human Rights Thomas Hammarberg on 31st March 2011 here

Read The Observer, 3rd April 2011, “Stop prisoners from voting? That’s criminal” here

Read The Telegraph 13th April 2011 here

Read the Daily Mail 13th April here

Read the Human Rights Blog 13th April 2011 here

Read the Guardian 13th April 2011 here

Read the BBC 12th April 2011 here

Read the House of Commons’ Briefing note on prisoners’ voting rights of 15th May 2013 here

Read The Observer, 26th May 2013 here

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