Prisoners Votes Case

Prisoners Votes Case

Written evidence submitted by the Prison Reform Trust

Barred from voting:

The right to vote for sentenced prisoners

February 2011

The UK’s blanket ban on sentenced prisoners voting undermines the principle that in a democracy everybody counts. Based on the outdated notion of "civic death" enshrined in the 1870 Forfeiture Act, it is an unjustified relic from the past which neither protects public safety nor acts as an effective deterrent.

The blanket ban remains in place despite the European Court of Human Rights ruling it unlawful in March 2004. The 2010 general election was held in breach of the European Convention and over 70,000 people were unlawfully disenfranchised.

Since then the coalition government has acknowledged that the UK needs to move towards compliance and at least some sentenced prisoners will be allowed to vote. However, without urgent action, elections in Scotland, Wales, Northern Ireland and in local constituencies due to be held in May 2011 will not be compliant with the European Convention on Human Rights.

The UK is behind most other European countries where prisoners are able to vote. The government and parliament must now put aside delaying tactics, respect and obey the judgment of the Court and overturn the outdated ban on prisoners voting.

Key facts and figures

· On 17 December 2010, the prison population in England & Wales stood at 84,548. The vast majority, 71,549, are sentenced prisoners who are denied the right to vote.

· The electoral ban on sentenced prisoners is contained in Section 3 of the Representation of the People Act 1983, as amended by the Representation of the People Acts 1985 and 2000. The ban dates back to the Forfeiture Act of 1870.

· Protocol 1, Article 3 of the European Convention on Human Rights guarantees ‘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’. This guarantee is now contained in the Human Rights Act, which became part of the law throughout the UK on 2 October 2000.

· In April 2001 the High Court rejected a case demanding enfranchisement of prisoners. In March 2004 the European Court of Human Rights (Hirst vs the United Kingdom (No 2)) ruled unanimously against the UK government’s blanket ban on sentenced prisoners voting; the government’s subsequent appeal to the Grand Chamber of the European Court was dismissed in October 2005.

· In April 2010 the European Court of Human Rights (Frodl v. Austria) made a further ruling that made clear that any removal of voting rights must be decided upon by a judge and "that there must be a link between the offence committed and issues relating to elections and democratic institutions." This suggests that disenfranchisement may lawfully be imposed only on a very small number of prisoners who have been sentenced for electoral fraud or a related offence. A further ruling by the European Court (Scoppola v. Italy) backs up these principles. These rulings suggest that the UK will be open to further challenges under the European Convention on Human Rights unless it moves to enfranchise the vast majority of sentenced prisoners.

· The UK is out of step with most other European countries. Around 40% of the countries in the Council of Europe have no restrictions on prisoners voting. Many others only ban some sentenced prisoners from voting. In France and Germany, courts have the power to impose loss of voting rights as an additional punishment. The UK is only one of a handful of European countries that automatically disenfranchise all sentenced prisoners, the others including Armenia, Bulgaria, Estonia, Hungary and Romania.

· The only other adult nationals who cannot vote in general elections are hereditary peers who are members of the House of Lords, life peers, patients detained in psychiatric hospitals as a result of their crimes and those convicted in the previous five years of corrupt or illegal election practices. Remand prisoners, people imprisoned for contempt of court and fine defaulters held in prison are eligible to vote.

Blanket ban unlawful

Basic principles for electoral democracy are set out in international law. These include the right of citizens to vote. The European Convention on Human Rights, Protocol 1, Article 3 states:

The parties undertake 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.

This guarantee is now contained within the Human Rights Act (2000). It does not make

exclusions for sentenced prisoners. Article 25 of the International Covenant on Civil

and Political Rights (ICCPR) provides every citizen with the right to take part in the conduct of public affairs, to vote in elections which have universal suffrage and to have equal access to public service. On a number of occasions, the United Nations Human Rights Committee, which monitors adherence to the ICCPR, has expressed concern about countries that do not allow prisoners to vote.

On 6 Dec 2001, the United Nations in the Concluding Observations of its International

Covenant on Civil and Political Rights, Human Rights Committee, made it clear that the

maintenance of the ban on voting is a "principal subject of concern". In Part 10 of the

Observations, the Committee "fails to discern the justification for such practice in modern times, considering that it amounts to an additional punishment and that it does not contribute towards the prisoners’ reformation and social rehabilitation, contrary to Article 10, Paragraph 3, in conjunction with Article 25 of the Covenant". The Committee concluded, "The State party should now reconsider its law in depriving convicted prisoners of the right to vote".

The European Court of Human Rights

In March 2004 the ECtHR considered the case of John Hirst. It found unanimously that the UK government was in violation of Article 3 Protocol 1 of the European Convention on Human Rights (ECHR), which guarantees the right to vote. The panel of judges that considered the case included Sir Nicolas Bratza, a British judge.

The ECtHR concluded that:

The fact that a convicted prisoner is deprived of his liberty does not mean that he loses the protection of other fundamental rights in the Convention.

and argued that the right to vote must be acknowledged as:

...the indispensable foundation of a democratic system.1

The UK government claimed that the ban is justified to prevent crime and punish offenders and to enhance civic responsibility and respect for the law. However, the ECtHR:

found no evidence to support the claim that disenfranchisement deterred crime and

considered that the imposition of a blanket punishment on all prisoners regardless of

their crime or individual circumstances indicated no rational link between the

punishment and the offender.

The ECtHR also maintained that:

Removal of the vote in fact runs counter to the rehabilitation of the offender as a law abiding member of the community and undermines the authority of the law as

derived from a legislature which the community as a whole votes into power.

The ECtHR was particularly concerned by the indiscriminate way in which a large category of people are disenfranchised in the UK. It noted that the ban on voting applies to all sentenced prisoners irrespective of the length of their sentence or the nature or gravity of their offence, and observed that its actual effect depends arbitrarily on the period during which the prisoner happens to serve their sentence. It observed that:

There is no evidence that the legislature in the United Kingdom has ever sought

to…assess the proportionality of the ban as it affects convicted prisoners.

It criticised countries where restrictions on the right to vote derive essentially from

unquestioning and passive adherence to a historical tradition, which can be seen to be

the case in the UK.

Appeal to the Grand Chamber

In 2005, the then UK government appealed to the Grand Chamber of the ECtHR, arguing that people in prison have forfeited their right to have a say in how the country is governed.2 In October 2005, the Grand Chamber rejected the UK government’s appeal by a majority of 12 to five, emphasising once again, the clear incompatibility with the ECHR of a blanket ban on prisoners’ voting. The judgment stated emphatically that:

There is no question, therefore, that a prisoner forfeits his Convention rights merely

because of his status as a person detained following conviction. Nor is there any place

under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.3

Additional cases in the European Court

Two recent cases heard in the European Court suggest that the UK is likely to be open to further challenges under the European Convention on Human Rights unless the government moves to enfranchise the vast majority of sentenced prisoners.

In the case of Frodl v. Austria (20201/04) the ECtHR ruled on 8 April 2010 that Austria’s disenfranchisement of all prisoners serving a sentence in excess of a year was unlawful. The judgement stated:

...prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty.... It is inconceivable, therefore that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction.

The judges went on to say that:

The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.

And that:

...it is an essential element that the decision on disenfranchisement should be taken by a judge... and that there must be a link between the offence committed and issues relating to elections and democratic institutions.4

In the case of Scoppola v. Italy (no. 3) (application no. 126/05), which is not final, the European Court of Human Rights held, unanimously, on 18 January 2011 that there had been:

A violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights. 5

The Court reiterated that a blanket ban on the right of prisoners to vote during their detention constituted:

An automatic and indiscriminate restriction on a vitally important Convention right … falling outside any acceptable margin of appreciation, however wide that margin may be

The Court ruled that the ban had been applied indiscriminately, having been taken irrespective of the offence committed and with no consideration of the nature and seriousness of that offence. It held that a decision on disenfranchisement should be taken by a court and should be duly reasoned.

Both rulings suggest that any decision to disenfranchise must be proportionate to the offence committed. Therefore, disenfranchisement may lawfully be imposed only on a very small number of prisoners who have been sentenced for electoral fraud or a related offence.

The Committee of Ministers at the Council of Europe, which oversees the execution of European Court judgments, has adopted this interpretation of the judgment in its decisions. At its meeting held in September 2010 the Committee stated that:

The measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned.6

Government response

Following the Grand Chamber’s decision, the former Government took over a year until December 2006 to initiate a protracted consultation process to determine how best to implement the judgement.

In April 2009, the government finally published the findings of the first stage of the consultation.7 The Prison Reform Trust, UNLOCK, Liberty, the Aire Centre and allied organisations found exercise to have been seriously flawed. The consultation document expressed disapproval about any prisoners voting and did not include in its list of possible options, on which views were being sought, all prisoners being allowed to vote. It included instead the option, declared unlawful by ECtHR, of maintaining the blanket ban.

However, the consultation findings revealed that, despite the flawed process, all prisoners being allowed to vote was favoured by nearly half (47%) the respondents. Only a quarter of respondents backed the then Government’s position of a total ban.8

At the same time, the then Labour Government published its second stage consultation paper.9 This for the first time accepted the need to end the UK’s blanket ban and sought views on how this should be done. Introducing the consultation’s four options for enfranchising prisoners, Justice Minister Michael Wills, said:

The government has made it clear that it disagreed with the European Court of

Human Rights ruling. However the result of the ruling is that some degree of voting being extended to some serving prisoners is unavoidable.

The four options that consultation sets out were:

1. Prisoners sentenced to less than one year’s imprisonment.

2. Prisoners sentenced to less than two years’ imprisonment.

3. Prisoners sentenced to less than four years’ imprisonment.

4. Prisoners sentenced to less than two years’ imprisonment plus prisoners imprisoned

between two and four years who have successfully applied to a judge for permission

to vote.

The option of all sentenced prisoners being enfranchised was again not included. This

protracted consultation ran from 8 April until 29 September 2009. To date the results of this second stage consultation have not been published.

General election 2010

In December 2009 the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160 ,10 in which it urged rapid adoption of measures by the UK authorities to implement the European Court judgment before the 2010 general election. Despite this, the election was held with the blanket ban still in place, in clear breach of the UK’s obligations under the European Convention. This resulted, as the Committee of Ministers had repeatedly warned, in the risk of repetitive applications for compensation to the European Court materialising, with over 2,500 applications received at the time of the Committee’s last meeting in December 2010.11

On 3 November 2010 the Prime Minister David Cameron announced in the House of Commons that the government would bring forward legislation to overturn the blanket ban.12 Primary legislation is not the only vehicle by which the blanket ban can be overturned. Under the Human Rights Act ministers have the power, in specified circumstances, to make a remedial order in order to remove an incompatibility between domestic law and a Convention right. The Joint Committee on Human Rights has consistently called upon the government to introduce such an order to put matters right.13

A ruling by the European Court on 23 November 2010 (Greens and MT v. UK) has given the UK six months from when the judgment is finalised to comply with the Hirst ruling.14 At its last meeting in December 2010, the Committee of Ministers:

Expressed hope that the elections scheduled for 2011 in Scotland, Wales and Northern Ireland can be performed in a way that complies with the Convention

Called upon the United Kingdom authorities to present an action plan for implementation of the judgment which includes a clear timetable for the adoption of the measures envisaged, without further delay

The Committee decided to resume consideration of the issue at its next meeting in March 2011.15

On 26 January 2011 the Parliamentary Assembly of the Council of Europe approved draft recommendations and proposals to improve the Committee of Minister’s oversight of the implementation of judgments of the European Court.

The draft resolution adopted states:

7.10. The United Kingdom must put to an end the practice of delaying full implementation of Court judgments with respect to politically sensitive issues, such as prisoners’ voting rights.

Speaking in the debate on behalf of the Committee on Legal Affairs and Human Rights, Mr Pourgourides, the Cyprus rapporteur, said:

On the issue of prisoners’ right to vote, I say to my Conservative colleagues from the UK that I recognise that the issue is sensitive in their country. However, I tell them, with all respect, that the rule of law was born in England and the UK’s international legal obligations require the UK to comply with the judgment with all due diligence. It is inappropriate – not to say unacceptable – for the oldest parliamentary country in Europe and a founding member of the Council of Europe to try to find excuses for not implementing a Court judgment. 16

The moral and practical case for reform

The case for reform is unequivocal. It rests on the view that voting should not be a privilege; it is a basic human right. This entitlement is not a selective reward for those who have been judged morally decent by a government.

The ban perpetuates social disadvantage and the notion of "civic death"

Poverty and social disadvantage are a major cause of crime and re-offending. Removing the right to vote increases social disadvantage by signalling to serving prisoners that, at least for the duration of their sentence, they are dead to society.

The disenfranchisement of sentenced prisoners dates back to the Forfeiture Act of 1870. The origins of the ban are rooted in a notion of civic death, a punishment entailing the withdrawal of citizenship rights.

Dr Peter Selby, former Bishop to HM Prisons and now President of the National Council for Independent Monitoring Boards for Prisons has stated that:

Denying convicted prisoners the right to vote serves no purpose of deterrence or reform. What it does is to state in the clearest terms society’s belief that once convicted you are a non-person, one who should have no say in how our society is to develop, whose opinion is to count for nothing. It is making someone an ‘outlaw’, and as such has no place in expressing a civilised attitude towards those in prison.17

The notion of civic death is applied selectively. People serving a sentence of any length

continue to contribute financially to society from within prison. They pay tax on their

savings, capital gains and any earnings that they receive during their sentence. If they are civically alive when it comes to financial contributions, they should be treated in the

same way when it comes to basic human rights.

Minority ethnic groups are disproportionately affected

The blanket ban perpetuates the marginalisation of black and ethnic minorities from the democratic process. Whilst approximately 2% of the UK population is black, an estimated 11% of the British national prison population is black. As the Commission for Equality and Human Rights has highlighted, this is a greater disproportion of black people in prison than in the United States.18 As such, black men are significantly more likely to be barred from voting than their white counterparts.

Voting would promote prisoners’ rehabilitation, resettlement and sense of

civic responsibility

The coalition government is pursuing an ambitious programme of civic renewal built around its vision of the Big Society. The notion of civic death works against this policy by excluding those who are already on the margins of society and further isolating them from the communities to which they will return on release. Prison governors, including Eoin McLennan-Murray, the current President of the Prison Governors’ Association, and many senior managers in the Prison Service believe that voting rights and representation form an ordinary part of rehabilitation and resettlement.

Peter Bottomley, Conservative MP and former Minister, notes that:

Ex-offenders and ex-prisoners should be active, responsible citizens. Voting in prison can be a useful first step to engaging in society.19

The Catholic Bishops of England and Wales also support the view that prisoners should have the right to vote. Their report A Place of Redemption states that:

Prison regimes should treat prisoners less as objects, done to by others, and more as

subjects who can become authors of their own reform and redemption. In that spirit, the right to vote should be restored to sentenced prisoners.20

At a meeting of the All Party Parliamentary Penal Affairs Group in January 2011, the Archbishop of Canterbury Dr Rowan Williams spoke of the importance of viewing prisoners as citizens for the process of their rehabilitation.

The ban contributes to the failure of imprisonment

Reconviction rates show that imprisonment fails to rehabilitate a very high proportion of

offenders. Reconviction rates for those sentenced to 12 months or less can reach 70%.

In 2011, most prisons are overcrowded and have to operate well above their certified normal accommodation (CNA).21 Prisoner self harm and suicides continue to be a matter of great concern. Without the vote, prisoners have no formal, organised and

protected right to a voice. This removes one of the pivotal ways of being heard by a government and leaves prisoners with limited, if any, recourse to challenge their worsening conditions. Former Conservative Home Secretary Lord Hurd has stated that:

If prisoners had the vote then MPs would take a good deal more interest in conditions in

prisons.22

The ban is an unjust additional punishment that achieves nothing

It does not protect public safety. It is not an effective deterrent. It is not a means to correct offending behaviour or to assist in the rehabilitation of offenders. It is an unjust additional punishment imposed, but not articulated, at the point of sentence and bears no relation to the causes of crime.

Prisoners’ voting is the norm in most other European countries and elsewhere

Voting by sentenced prisoners works successfully elsewhere, and almost all of our European neighbours have partial or no restrictions on voting – without detrimental social effects. Around 40% of the countries in the Council of Europe, including Ireland, the Netherlands and Spain, have no ban. In 2009, Latvia has allowed all prisoners the right to vote. In 2006, Cyprus, which also previously had a blanket ban

on prisoners voting, passed legislation enabling full enfranchisement of its prison population.

Many other European countries only ban some sentenced prisoners from voting. For example, in France and Germany, courts have the power to impose loss of voting rights as an additional punishment.

The UK is one of only one of a handful of Europe countries automatically to disenfranchise sentenced prisoners, the others including Armenia, Bulgaria, Estonia, Hungary and Romania.

The Council of Europe is in the process of revising the European Prison Rules, which aim to establish common principles in the area of penal policy. It is anticipated that the new rules may require Member States to enable prisoners to participate in elections, in so far as their right to do so is not restricted by national legislation.

In 2002 the Canadian Supreme Court stated that:

Denial of the right to vote…undermines the legitimacy of government, the effectiveness of government, and the rule of law…It countermands the message that everyone is

equally worthy and entitled to respect under the law.23

It ruled that to ban prisoners serving over two years from voting was too broad a measure.

In Australia, the length of their sentence determines whether or not convicted prisoners retain voting rights.

In South Africa, all prisoners have the right to vote. Handing down a landmark ruling in April 1999, the Constitutional Court of South Africa declared that:

The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.24

How would the right to vote work in practice?

The former Chief Executive of the National Offender Management Service (NOMS), Martin Narey, confirmed some years ago that sentenced prisoners voting "poses no problems for the Prison Service".25 In the UK, people held on custodial remand maintain their voting rights, and are able to vote by post or proxy. They cannot register at the prison address, but the Representation of the People Act was amended in 2000 to enable remand prisoners to register using a declaration of local connection (this means that they use the address where they would be living if they were not on remand or an address where they have lived in the past). A similar procedure could be used for sentenced prisoners. The Electoral Commission has identified remand prisoners as ‘hard to reach’ voters with whom it is important to engage.

In its evidence to the Ministry of Justice second consultation in 2009, the Electoral Commission confirmed that:

We are not taking a view on which prisoners should or should not be able to vote. However, we feel that prisoners who have been allowed the vote should be entitled to vote in all elections that their age, nationality and deemed place of residence would allow them to, were they not imprisoned.

With regard to the administrative issues, we broadly support the Government’s approach as outlined in this consultation. Prisoners should be able to register to vote using a special version of the rolling registration form. Any application should be attested by an appropriate member of the prison’s staff, who should be under a duty to assist in such applications.

As far as possible, any enfranchised prisoner should be treated the same as any other elector. While it may not be desirable or indeed possible for a prisoner to attend a polling station, prisoners should be given the same rights to a postal or proxy vote as any absent voter who could show that they have a good reason for not being able to attend their polling station. Furthermore, prisoners should have the right to register anonymously on the same basis as a regular voter.

If a prisoner decides to vote by post, they should have the legal right to a secret ballot

and prisons should be compelled to provide a room in which the ballot paper can be marked in secret.

It may be preferable for a new type of elector, a prisoner voter, to be created in legislation, or for the declaration of local connection to be modified. We are happy to discuss with the MoJ how best to implement the decisions made following this consultation.26

In summary, there are overwhelming legal, moral and practical reasons for enfranchising people in prison.


End Notes

1. European Court of Human Rights (30 March 2008) Judgment in the case of Hirst v The United Kingdom (No. 2)

(Application no. 74025/01)

2. Latvia was the one Council of Europe country that produced supporting evidence for maintaining the ban. In 2009 Latvia enfranchised its sentenced prisoners.

3. European Court of Human Rights (6 June 2009) Grand Chamber Judgment Hirst v The United Kingdom (No. 2)

4. European Court of Human Rights (8 April 2010) Judgment in the case of Frodl v Austria

5. European Court of Human Rights (18 January 2011) Judgment in the case of Scoppola v Italy (No. 3)

6. 1092nd DH meeting, 14-15 September 2010, decisions adopted https://wcd.coe.int/wcd/ViewDoc.jsp?id=1668965&Site=CM

7. Ministry of Justice (2009) Voting rights of prisoners detained within the UK: second stage consultation, London:

Ministry of Justice www.justice.gov.uk/consultations/docs/prisoner-voting-rights.pdf

8. Ibid.

9. Ibid.

10. https://wcd.coe.int/wcd/ViewDoc.jsp?id=1556821&Site=CM

11. https://wcd.coe.int/wcd/ViewDoc.jsp?id=1715857&Site=CM

12. House of Commons Hansard debates for 3 November 2010 http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm101103/debtext/101103-0001.htm

13. Joint Committee Human Rights, 31st Report, 7 October 2008; para 63.

14. European Court of Human Rights (23 November 2010) Judgment in the case of Greens and MT v UK

15. https://wcd.coe.int/wcd/ViewDoc.jsp?id=1715857&Site=CM

16. http://assembly.coe.int/Main.asp?link=/Documents/Records/2011/E/1101261500E.htm

17. Prison Reform Trust and Unlock press release (2 March 2004) Barred From Voting: Coalition calls for prisoners to be given the vote.

http://www.guardian.co.uk/commentisfree/2011/jan/21/prisoners-right-to-vote?INTCMP=SRCH

18. Equality and Human Rights Commission, How Fair is Britain? 11 October 2010

19. Prison Reform Trust and Unlock press release (2 March 2004) Barred From Voting: Coalition calls for prisoners to be given the vote.

20. Catholic Bishops’ Conference of England and Wales (2004) A Place of Redemption,London: Burns and Oates.

21. NOMS monthly bulletin, June 2009.

22. Cited in Leech & Shepherd (2003) Prisons Handbook 2003/4 Manchester: MLA press.

23. Supreme Court of Canada (31 Oct 2002): Richard Sauvé v Attorney General of Canada and others 2002 SCC 68.

24. Constitutional Court of South Africa (1 April 1999): August and another v Electoral Commission and Others CCT8/99.

25. Levenson J. (2001) Barred from Voting, Prison Reform Trust.

26. Electoral Commission response to the Ministry of Justice consultation Voting Rights of Convicted Prisoners Detained within the United Kingdom (second stage) September 2009.