The European Convention on Human Rights protects human rights such as the right to liberty and the right to vote. The states that signed the Convention agreed to hold free elections under Protocol 1, Article 3 of the Convention.[1] The European Court of Human Rights determined that arbitrary restriction of prisoners’ right to vote is a violation of this provision of the Convention.[2] This determination has led to tension between the Court and the United Kingdom.

The United Kingdom signed on to the European Convention on Human Rights in 1950.[3] While the United Kingdom is normally in compliance with requirements of the Convention, the United Kingdom has prevented prisoners from voting in elections. The United Kingdom claimed that requiring signatories to allow prisoners to vote was an expansion of the rights of the Convention beyond the original intent of the its founders.[4] However, the cases before the Court seem to show a reasonable balance between assertion of human rights and the respect for state sovereignty, despite the United Kingdom’s complaints.

The first major case involving the rights of prisoners in the United Kingdom was Hirst v. the United Kingdom. In Hirst, the applicant was convicted of manslaughter. Under the Representation of the People Act, the applicant was barred from voting in parliamentary or local elections.[5] The Act created a blanket ban on all prisoners voting in such elections. The Court held that the Act was a violation of the European Convention on Human Rights.[6] The Court stated that the deprivation of any prisoner’s right other than the right to liberty must be justified.[7] The Court elaborated that there was no debate on the parliamentary floor regarding the justification for this blanket ban on prisoners voting. Thus, the “automatic disenfranchisement based purely on what might offend public opinion” violated the Convention’s requirement for free elections.[8]

After the decision in Hirst, thousands of claims were filed with the Court claiming that the United Kingdom was violating the Convention by barring prisoners from voting.[9] In response, the Court heard the case Green & M.T. v. the United Kingdom.[10] In Green, the Court responded to the United Kingdom’s lack of change in its laws with a request to amend the offending legislation within six months. This deadline was later extended in light of the Court’s decision in a later case, Scoppola v. Italy.[11] The Court held that the until the change occurred, the United Kingdom was in violation of the Convention.[12]

Claims continued to come in, citing violations of Protocol 1, Article 3. In Firth and Others v. the United Kingdom, the Court recognized that the United Kingdom had made attempts to amend its law.[13] A bill had been drafted, but was stuck on the parliamentary debate floor.[14] Since the Representation of the People Act had not been amended, the Court found that the United Kingdom was still violating Protocol Article 3.[15]

The United Kingdom did not agree with the Court’s understanding of Protocol 1 Article 3. The United Kingdom felt that the Court was expanding the rights put forth in the Convention.[16] The Convention only states a need for free elections.[17] By expanding the meaning of a free election to require states to allow prisoners to vote, the United Kingdom argued, the intent of the founders of the Convention was no longer being served.[18] While this argument has merit, the United Kingdom was also generally going through a political period of strong self-determination that made the State less willing to work with the international court.[19] The referendum for Scottish independence was happening, and the United Kingdom Independence Party was on the rise. Clearly, the United Kingdom was more concerned with national sovereignty, not international regulation.

The European Court of Human Rights had a different interpretation of the rights within the European Convention on Human Rights. The supposed expansion of other rights within the Convention largely followed the United Kingdom’s model, and the Court based much of its reasoning on the United Kingdom’s common law system.[20] Thus, the Court was not expanding rights beyond what the United Kingdom typically observed. The United Kingdom, therefore, seems less concerned with the idea of expansion of rights in general and more concerned with this particular substantive issue.

Several cases in which the Court did not find a violation suggest that the Court has great respect for state sovereignty in elections. In one such case, the Court found that the elections the prisoners were claiming to be barred from were not covered by the European Convention on Human Rights. As such, the Court found that the United Kingdom had not violated the Convention in those cases.[21] The Court also held that violations could not be found based on future elections if prisoners do not plead sufficient facts about their detention.[22] In Dunn, the prisoners had not yet been denied the right to vote, but believed they would be in future elections. The Court found that it was uncertain that the prisoners would still be detained at the time of the elections. Thus, there was no violation.[23]

The Court gives its most permissive language in Moohan and Gillon v. the United Kingdom. In Moohan, the prisoners were not permitted to vote in the referendum for Scottish independence.[24] The Court held that the referendum was not the type of election that was meant to be controlled by the Convention. Rather, the Convention was meant to be limited to elections concerning the choice of legislators.[25] Thus, the claim was inadmissible and there was no violation in Moohan.[26] Decisions such as Moohan show that the Court is willing to step back and allow electoral processes to be determined by local culture and political thought.

The right to vote is a critical part of any democracy, and ensuring that right to prisoners is an important goal of the European Court of Human Rights. However, the Court must also respect the sovereignty of the signatories to the European Convention on Human Rights. The Court has reached this balance by allowing state governments to control certain aspects of their elections based on their cultural and political beliefs. Even with this restriction on the Court’s understanding of a free election, the United Kingdom argues that the Court has gone too far with its understanding of the rights in the Convention.

The tension between the United Kingdom and the European Court of Human Rights will likely continue until the United Kingdom can successfully amend the Representation of the People Act. Until then, the United Kingdom will likely continue to argue that the Court has overstepped the intent of the Convention’s founders.


[1] European Convention on Human Rights [ECHR], protocol 1, art. 3, Nov. 4, 1950, Y.B. Eur. Conv. on H.R.

[2] Hirst v. United Kingdom, 2005-IX Eur. Ct. H.R. 187.

[3] Supra, note 1.

[4] The European Court of Human Rights: Anti-Democratic or Guardian of Fundamental Values?, Oct. 13, 2014, https://www.chathamhouse.org/-sites/files/chathamhouse/field/field_document/20141013EuropeanCourtHumanRightsFinal.pdf.

[5] 2005-IX Eur. Ct. H.R. 187.

[6] Id.

[7] Id.

[8] Id.

[9] European Court of Human Rights Factsheet: Prisoner’s Right to Vote http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf

[10] Green & M.T. v. United Kingdom, 2010-VI Eur. Ct. H.R. 57.

[11] European Court of Human Rights Factsheet: Prisoner’s Right to Vote http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf

[12] 2010-VI Eur. Ct. H.R. 57.

[13] Firth and Others v. the United Kingdom, 178 Crim. L. & Just. (2014).

[14] Id.

[15] Id.

[16] The European Court of Human Rights: anti-democratic or guardian of fundamental values?, Oct. 13, 2014, https://www.chathamhouse.org/-sites/files/chathamhouse/field/field_document/20141013EuropeanCourtHumanRightsFinal.pdf.

[17] ECHR, protocol 1, art. 3, Nov. 4, 1950.

[18] The European Court of Human Rights: anti-democratic or guardian of fundamental values?, Oct. 13, 2014, https://www.chathamhouse.org/-sites/files/chathamhouse/field/field_document/20141013EuropeanCourtHumanRightsFinal.pdf.

[19] Id.

[20] Id.

[21] McLean and Cole v. the United Kingdom, Judgment, 2522/12 [ECHR] 2013.

[22] Dunn and Others v. the United Kingdom, Judgment, 566/10 [ECHR] 2014.

[23] Id.

[24] Moohan and Gillon v. the United Kingdom, Judgment, 22962/15 and 23345/15 [ECHR] 2017.

[25] Id.

[26] Id.

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