examination of the progress made at a meeting in December 2013. This ongoing
process was in June 2013 noted by the Strasbourg Court in its judgment in McLean
and Cole, paras 36-37, where the Court concluded that, in its light, there was
“nothing to be gained from examining applications concerning future elections at
this time” (para 37).
20.
In Hirst (No 2), Greens and Scoppola the European Court of Human Rights
acknowledged the width of the margin of appreciation, or the “wide range of
policy alternatives”, which States enjoy in relation to voting rights (Hirst (No 2),
para 78, Greens, para 114 and Scoppola, para 83). In both Hirst (No 2) and
Scoppola the Grand Chamber acknowledged that disenfranchisement of convicted
serving prisoners “may be considered to pursue the aims of preventing crime and
enhancing civic responsibility and respect for the rule of law” (Hirst (No 2), paras
74-75 and Scoppola, para 90). In Hirst (No 2) the Grand Chamber (upholding the
earlier Chamber) held that the United Kingdom’s ban on prisoner voting was a
“general, automatic and indiscriminate restriction on a vitally important
Convention right” which fell “outside any acceptable margin of appreciation” and
was incompatible with A3P1 (para 82).
21.
A powerfully constituted minority of the Grand Chamber (including its
President and future President) dissented. It took as its test whether the restrictions
on prisoner voting “impair the very essence of the right to vote or are arbitrary”
(para O-III5), and it pointed out that the Court should be very careful not to
assume legislative functions and that there was little consensus in Europe about
whether or not prisoners should have the vote (para O-III6). It noted that a multiparty Speakers Conference on Electoral Law in 1968 had unanimously
recommended that convicted persons should not be entitled to vote, and that the
RPA had been amended in 2000 only to permit remand prisoners and unconvicted
mental patients to vote. As to the majority comment that there was no evidence of
substantive debate in Parliament about the ban on convicted prisoners voting, the
minority disagreed, on the basis that it was “not for the Court to prescribe the way
in which national legislatures carry out their legislative functions”, and it must be
assumed that the RPA “reflects political, social and cultural values in the United
Kingdom” (para O-III7)
22.
In Scoppola the United Kingdom intervened and the Attorney General
appeared before the Grand Chamber to ask that it reconsider Hirst (No 2). But, in
its judgment the Grand Chamber said (para 96) that it reaffirmed
“the principles set out by the Grand Chamber in the Hirst (No 2)
judgment, in particular the fact that when disenfranchisement affects
a group of people generally, automatically and indiscriminately,
based solely on the fact that they are serving a prison sentence,
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