Article 3 of the First Protocol: Right to free elections

The right to free elections is crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.

By agreeing to Article 3 of the First Protocol, the UK has undertaken 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.

Right to vote

This gives a right to individuals to vote. Needless to say, it is a right and not a privilege.  This right is closely linked to the right to freedom of speech and freedom of assembly, as it guarantees respect for pluralism of opinion in a democratic society.

The right to vote is not absolute – conditions can be imposed so long as they pursue a legitimate aim, are proportionate and do not thwart the free expression to the opinion of the people in choosing the legislature.

Conditions may be set on the right to vote such as minimum age requirements and, in some circumstances, residency.  But such restrictions cannot impair the very essence of the right to vote.  In particular, disenfranchisement is a very serious matter and it will require a discernible and sufficient link between the sanction of disenfranchising someone and the conduct and circumstances of the person being disenfranchised.  A blanket, automatic restriction that applies regardless of individual circumstances will be in breach of the right to vote.

The right to stand for elections

There is also a right to stand for election to the legislature, which includes a right to sit as a member of the legislature once elected.  There can be restrictions on who is eligible to stand for election but eligibility procedures must contain sufficient safeguards to prevent arbitrary decisions.

Case study

At the time of publication, under UK electoral law, anyone in prison serving a sentence on the day of an election is denied the right to vote at any parliamentary or local government election.  This applies regardless of the length of the person’s sentence (it applies across the board to those serving from one day to life imprisonment), or the nature or seriousness of the offence for which they were imprisoned. 

In 2005 the European Court of Human Rights considered this restriction on the right to vote.  It accepted that the right to vote was not absolute but that any limits imposed had to pursue a legitimate aim and be proportionate.  It accepted that the limit on prisoner voting may be regarded as pursuing the legitimate aim of preventing crime by sanctioning the conduct of convicted prisoners and also the aim of enhancing civic responsibility and respect for the rule of law.  However, it held that such a general, automatic, indiscriminate and blanket restriction on a vitally important right was disproportionate.

In 2012 a Grand Chamber judgment in the case of Scoppola v. Italy (n° 3) (application no. 126/05), which is final, the European Court of Human Rights held, by a majority, that there had been no violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights.

The case concerned the applicant’s disenfranchisement following his criminal conviction. The Court found that the disenfranchisement of convicted prisoners provided for under Italian law was not like the general, automatic, indiscriminate measure that led it to find a violation of Article 3 of Protocol No. 1 in the Hirst (no. 2) v. the United Kingdom case. Italian law took care to adapt the measure to the particular circumstances of a case, particularly the length of the sentence.

After all the political hot-air and raised tempers over prisoner voting, the judgment shows that whilst the Court of Human Rights must uphold core values against blanket and irrational Victorian laws, it will allow individual countries a great deal of discretion about how best to apply human rights at home.

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