As voters across the UK went to the polls on Thursday 5 May 2011, in a series of national and local elections, as well as a referendum on the way in which MPs are elected, prisoners remained disenfranchised.

Over one month into the 6 month timescale fixed by the European Court of Human Rights (ECtHR), the UK Government has taken no steps to address the blanket ban on prisoners exercising their right to vote. We recently reported that the ECtHR had, for the time being at least, drawn a line under the issue, noting that it would not hear any further applications pending compliance by the UK Government. This decision, however, has not prevented prisoners from continuing to challenge the blanket ban. Indeed, some of those who have continued to do so have adopted distinctly different arguments, with a view to taking their cases to a different European Court altogether; not to the ECtHR in Strasbourg, but to the European Court of Justice (ECJ) in Luxembourg.

One such prisoner, who sought to challenge the decision of the Electoral Registration Officer to refuse to register him as a voter, by way of judicial review, has been unsuccessful in obtaining a reference to the ECJ. Lord Tyre dismissed the Petition for Judicial Review on the basis that a statutory remedy existed that provided an effective means of seeking redress and, in respect of the substantial arguments, Lord Tyre was not persuaded by the interpretation of the European Union law as presented on behalf of the prisoner. In finding against the prisoner, Lord Tyre was of the view that the rights referred to (which, it was argued, provided the individual prisoner with the opportunity to vote in certain elections) were only conferred on persons resident in a member state of which they are not a national. Accordingly, they were not applicable here. Furthermore, there was uncertainty as to which elections fell into the specific category that these rights related to, but this matter did not require to be considered in full as the judicial review was dismissed on other grounds.

An appeal has now been marked against this decision and, following a successful motion for early disposal, the appeal will be heard by three Senior Judges in the Inner House of the Court of Session in early July 2011.  It seems unlikely that the UK Government will have taken steps to introduce legislation to address the blanket ban on prisoners voting by the time the Court hears this appeal, particularly with MPs currently focused on coming to terms with the fall out from the recent elections. It remains to be seen, however, whether such steps will be taken before the Court’s decision is issued, or, (if the Court determines it appropriate) before the matter reaches the ECJ, or even before the 6 month timescale expires.

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