Sanchita Hosali,
Deputy Director, BIHR


Its General Election day, and people across the UK will be at the polling stations electing their local MP and ultimately determining which political party(s) will be in a position to determine our next Government. Voting rights are an important part of our democracy and the Human Rights Act protects our right to free elections, which includes the right to vote. This is set out in Article 3, Protocol 1 which says the UK will “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature [Parliament]”. As the European Court of Human Rights has noted:


“the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law” (Hirst v UK)


Under our human rights law, voting is a right, not a privilege, although it is often described as such. Voting rights are important to other human rights protected by the Human Rights Act including freedom of expression and freedom of assembly.


Can our rights be restricted?


The right to vote is not absolute, this means the right can be restricted. As the European Court of Human Rights has explained:


“the rights bestowed by Article 3 of Protocol No. 1 are not absolute... There are numerous ways of organising and running electoral systems and a wealth of differences… in historical development, cultural diversity and political thought within Europe… it is for each [country]…to mould into their own democratic vision.” (Hirst v UK)


However, restricting voting rights, particularly “disenfranchising” or not permitting some people to vote must not be entered into lightly. Just because the right to vote can be restricted, doesn’t mean that any restriction is allowed; it must be proportionate. This requires a discernible and sufficient link between the restriction and the conduct and circumstances of the person who is having their right to vote limited.


Who can’t vote?


The idea of universal suffrage is fairly recent in the UK. Before the Human Rights Act, the right for men over 21 to vote was only set down in law just over 90 years ago and for women 10 years after that. The voting age for General Elections was only lowered to 18 in 1970. However there are still some groups of people who cannot vote in General Elections, like today’s, which will decide who runs the UK for the next five years. This includes young people aged under 18 and people serving prison sentences.


The issue of voting rights for people in prison has caused a bit of stir, with lots of political and media commentary confusing the issue. Currently, those serving prison sentences are not allowed to vote (this can be traced back to a law from Victorian times, from before human rights were set down in law). This applies to all prisoners, it doesn’t matter what offence they have been convicted of or the sentence they are serving; the ban on voting applies whether it’s a pensioner in prison for a few days because they have been convicted of failing to pay council tax or someone serving a life sentence for murder. People in prison challenged this blanket ban, arguing it wasn’t a proportionate restriction of the right to vote under the Human Rights Act. The case went all the way to the European Court of Human Rights.


There has been much controversy surrounding this case, but at BIHR we find that when we go around the country as part of our Human Rights Tour and talk to people about the case it’s much less controversial than you might think. What the Court said was that restrictions need to be proportionate. Blanket bans in general tend to fall foul of human rights laws because there is no ability to consider the circumstances of a person or particular group. Also, as the ban was so old, the Court said the UK needed to re-look at the issue and decide what would be a proportionate restriction. This is very different to the way the case is often reported; at no point did the Court say all prisoners must be given the vote, rather there needs to be a sensible discussion about where the line should be drawn. The UK has yet to comply with this judgment, although Parliament has looked at the issue, progress has stalled. This has meant more people in prison have asked the European Court of Human Rights to look again at the issue. The Court has been very strict that whilst the UK ban must be addressed, those in prison are not entitled to damages or compensation whilst the ban remains in force. (McHugh and others v UK)


Another group of people who are concerned about their right to vote is 16-18 year olds. At BIHR we also carry out a Young People’s Human Rights Tour for people aged under 18. One issue that young people across the four nations tell us is that they would like to have the right to vote, and they don’t think the restriction on this right is fair. There are some differences on this issue in the UK as 16 and 17 year olds in Scotland were able to vote in September’s Independence Referendum. Over 100 000 young people were registered to vote prior to the referendum.


It will be interesting to see how voting rights, so crucial to our democracy, will progress under the next UK government. We hope that whatever the outcome of today’s elections that those with power will be as clear as the young people we work with: the right to vote is one of our fundamental human rights.