VEP 0031

Written Submission by C.R.G. Murray, Newcastle Law School, Newcastle University VEP 0031

Executive Summary

• The historical record of legislation affecting prisoner voting does not indicate a long-standing ban on the prison franchise in the UK’s legal systems. A large section of the UK prison population (including prisoners serving sentences of less than one year in England, Wales and Northern Ireland and almost all prisoners in Scotland) were able to vote by postal ballot between 1949 and 1969.
• The right to vote is a human right and it is not peripheral in nature, but fundamental to the UK’s democracy. Nonetheless, it is a qualified right, the removal of which can be justified as a punishment in cases of serious criminal wrong-doing.
• In my opinion, under the decisions of the European Court of Human Rights in Hirst and Scoppola, the UK could possibly comply with Article 3 of Protocol 1 ECHR by enfranchising prisoners serving sentences of less than six months in prison and would comply if Parliament enfranchised prisoners serving sentences of less than four years.

Author Information

Colin Murray is a senior lecturer in law at Newcastle University, having been a lecturer from 2007 to 2012. His research examines the concepts of citizenship and allegiance in the UK context. His contributions to academic debate concerning prisoner voting rights include ‘Playing for Time: Prisoner Disenfranchisement under the ECHR after Hirst v United Kingdom’ (2011) 22 King’s Law Journal 309-334, ‘We need to talk: “democratic dialogue” and the ongoing saga of prisoner disenfranchisement’ (2011) 62 Northern Ireland Legal Quarterly 57-74 and ‘A Perfect Storm: Parliament and Prisoner Disenfranchisement’ (2013) Parliamentary Affairs (forthcoming).

What are the historical and philosophical justifications for denying prisoners the right to vote?

A) Historical Justifications

[1]          The historical justifications for the current restrictions on prisoner voting are questionable. In the law of England and Wales, and in Northern Ireland, prisoners have not been regarded as subject to “civic death” for the duration of their incarceration since the passing of the Forfeiture Act 1870 ended the practice of attainder, by which a convicted felon’s property became forfeit to the Crown.[1]

[2]          Since these reforms, imprisonment has come to be regarded as primarily involving a deprivation of the prisoner’s liberty, and the courts have recognised that ‘a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication’.[2] One of the rights currently expressly removed is the right of prisoners (other than those imprisoned for contempt, default or on remand) to vote.[3] But, as the Government has acknowledged in the notes accompanying the Voting Eligibility (Prisoners) Draft Bill, there has not been constancy in the UK's approach to prisoner disenfranchisement since 1870. The most that can be said is that '[t]here has been some form of bar on prisoners voting in UK legislation for most of the past 140 years'.[4]

[3]          Under the Forfeiture Act prisoners convicted of a felony (a class of serious crime used in the criminal law of England and Wales until 1967) and sentenced to imprisonment for more than one year were subject to statutory disenfranchisement.[5] Other prisoners were subject to what might be described as “administrative disenfranchisement”, in that they could not register a prison as their residence for the purpose of voting and could not leave prison to vote in their home constituency without the Home Secretary’s permission.[6]

[4]          The administrative bars to prisoners voting were removed in the aftermath of the Second World War. Under the Representation of the People Act 1948 postal ballots were for the first time made available to individuals ‘no longer resident at their qualifying address’.[7] Prisoners not covered by the statutory restriction under the Forfeiture Act could use postal ballots to vote at their home address. In England, Wales and Northern Ireland, this meant that all prisoners not convicted of a felony with a prison sentence of more than one year could vote. In Scotland, with the abolition of outlawry in 1949, all prisoners (regardless of the seriousness of their offence) could vote.[8]

[5]          On the recommendation of a Law Reform Commission Report (which explicitly recognised the consequences for prisoner enfranchisement[9]), Parliament ended the classification of offences as felonies and misdemeanours in 1967.[10] Between January 1968 and April 1969 no restrictions existed on the voting rights of UK prisoners provided that they followed the rules applicable to postal ballots. There is no empirical data available as to the number of prisoners who exercised the right to vote between 1949 and 1969, but questions in Parliament during the era confirm that prisoner voting by postal ballot did occur.[11]

[6]          That this liberalisation of the restrictions on prisoner voting took place with little debate, on the recommendation of expert bodies such as the Law Reform Commission, is entirely in keeping with other largely de-politicised reforms of the criminal justice system in this era.[12] Likewise, when the Home Secretary James Callaghan introduced the current ban on prisoners voting in 1969,[13] that move marked the start of an era in which criminal justice policy became an intensely politicised matter. Today’s restrictions on prisoners’ right to vote are therefore not a long-established, near “immutable” feature of the UK’s electoral arrangements. They are a product of modern concerns over criminal justice and, as with other aspects of the UK’s criminal justice policy, should conform to the UK’s human rights commitments.

B) Philosophical Justifications

[7]          As Laws LJ has recognised in one of the leading judgments on prisoner voting in the domestic courts, ‘there are deep philosophical differences of view between reasonable people upon the question of prisoners’ suffrage’.[14] The UK Government, in opposing the Hirst claim before the European Court of Human Rights, justified the restrictions on grounds of ‘enhancing civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence’.[15]

[8]          The European Court of Human Rights did not dismiss the importance of these concerns in its Hirst judgment, asserting that there is ‘no reason in the circumstances of this application to exclude these aims as untenable or per se incompatible with the right’.[16] In its recent Scoppola decision, the Court’s Grand Chamber reaffirmed that these constituted ‘legitimate aims’.[17] The touchstone of the UK’s breach of human rights in denying prisoners the vote therefore lies not in the underlying reasoning behind disenfranchisement, but in the fact that this rationale was not subject to debate in light of human rights standards in the course of the legislative process[18] and that the present restrictions are disproportionate to the aim.[19]

Why is the right to vote considered to be a human right?

[9]          The right to vote is enshrined as one of the UK’s international human rights commitments. Under Article 3 of Protocol 1 of the European Convention on Human Rights, the UK accepted the responsibility to ‘ensure the free expression of the opinion of the people in the choice of the legislature’. Article 25 of the International Covenant on Civil and Political Rights provides a right for individuals to take part in public affairs in their country of citizenship. Furthermore, under Article 40 of the EU Charter of Fundamental Rights, ‘every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State’.[20]

[10]      If the UK repudiated its international commitments, however, this would not of itself dispel the status of the vote as a right under the UK constitution. In domestic law, into the early-twentieth century, the ability to vote was hedged by property- and gender-based restrictions.[21] Additional votes for business owners and university graduates were only removed for general elections in 1948[22] (but remained a factor in Northern Ireland Parliament elections until 1968).[23] Through this process of legislative reform the UK came to embrace Jeremy Bentham’s principle of one person, one vote, of equal worth.[24]

[11]      Senior judges now recognise democracy in the UK ‘is founded on the principle that each individual has equal value’.[25] Moreover, whilst the UK constitution operates on a basis that Parliament is sovereign, and can therefore legislate in a way which fundamentally alters personal interests, this authority today rests on the basis of Parliament’s democratic legitimacy. As Keith Ewing has recognised, parliamentary sovereignty may be ‘a constitutional principle acquired before the advent of democracy, but it remains one which might be said to be the most democratic of all constitutional principles’.[26] For Parliament to regard the vote as a privilege, to be withdrawn without justification, would be to undermine the legitimacy of its own constitutional powers,[27] and may even justify judicial intervention.[28]

Is disqualifying prisoners from voting a suitable part of their punishment?

[12]      Advocates of an absolute prohibition on convicted prisoners voting maintain that any person convicted of an offence warranting imprisonment has disregarded his civic responsibility and thereby forfeited his vote. Advocates of the enfranchisement of all prisoners, by contrast, maintain that the right to vote is foundational to the UK’s democracy and should not be withdrawn under any circumstances. The former position disregards the current requirements of the right to vote under the ECHR, whilst the later position risks overstating them.

[13]      Even though the right to vote is a human right, it does not follow that it is an absolute right. Foreign nationals, for example, can legitimately be denied the vote without violating the UK’s ECHR commitments. The issue for the European Court is one of proportionality. In the context of prisoners, it is willing to concede that restrictions on the ability of some prisoners to vote are justifiable (provided that the rationale underpinning such legislative restrictions is considered by Parliament). But to restrict almost all prisoners from voting fails to give adequate regard to the fundamental importance of the vote in a democracy.

[14]      In other words, the importance of the vote is such that it cannot simply be removed as an adjunct to the deprivation of a prisoner’s liberty. For example, one problem with conceiving of the loss of the right to vote as a punishment that runs in parallel with the loss of an individual prisoner’s liberty, is that some prisoners continue to be deprived of their liberty not as a punishment, but in the interests of public safety.[29] Moreover, criminals sentenced to very short periods of imprisonment may lose their right to vote if that imprisonment happens to coincide with an election, introducing an element of arbitrariness into the punishment.[30]

[15]      The Court requires that a specific rationale must be identified for imposing voting restrictions upon particular prisoners, as opposed to an ‘automatic and indiscriminate’ rule with a general effect on a large body of prisoners.[31] The Court does not, therefore, reject the idea that removal of the vote can, in some cases, constitute an appropriate additional penalty to removal of an individual’s liberty.

What are the financial implications of maintaining the current ban in terms of claims by prisoners for compensation?

[16]      This issue of legal implications for continued UK non-compliance will be addressed in paragraph 20 below, but the committee should note that the European Court has been slow to award compensation to prisoners who have been denied the vote in cases heard to date, in spite of the delays in reforming the law. It explicitly refused to award monetary compensation (beyond costs) to the claimants in Hirst[32] and (over five years later) in Greens & MT.[33]

Is sentence length a legally robust basis on which to retain an entitlement to vote?

[17]      In various decisions relating to prisoner voting the European Court has mentioned giving the power of judges on sentencing to remove the vote,[34] or removing the vote for particular crimes in which the nexus of criminality serves to undermine the democratic process (for example, offences related to electoral fraud, abuse of office by elected representatives or political violence),[35] as being justifiable approaches to withdrawing the franchise from particular prisoners.

[18]      Neither approach is without its short comings. Upon conviction for a criminal offence, a sentencing decision personal to an individual (following a fair trial before an independent tribunal) is necessary to legitimately remove her liberty,[36] but a separate judicial direction as to the length of deprivation of the vote might prove difficult for prisons to administer. It might even, in line with Scoppola, permit the state to deprive someone of their right to vote even after their liberty has been restored (not an approach I would advocate following).[37] Removal of the right to vote for particular classes of offences (broadly, offences striking at the operation of democracy), regardless of the seriousness of the criminality at issue, smacks of the adoption of individuated reciprocal penalties within the legal system (or, put bluntly, an “eye for eye, tooth for tooth”[38] conception of justice). These remain mere suggestions by the court on how to proceed, and are not approaches that the UK must necessarily adopt in order to comply with its ECHR obligations.[39]

[19]      Sentence length stands as an indicator of the seriousness of a criminal wrong committed by an individual. The rationale of a sentence for a criminal conviction in the domestic legal systems is ordinarily to remove an individual’s liberty in proportion to the seriousness of the criminal offence he has committed (for Hegel, ‘the concept and measure of [a criminal’s] punishment are derived from his act’[40]). Sentence length therefore potentially serves as a measure by which to divide criminality so serious that it warrants removal of the vote from lesser criminality. The difficulty lies in drawing the line where a prisoner has so damaged social norms as to warrant this additional punishment.[41]

What would be the likely legal consequences, both domestically and internationally of: a) keeping the law as it is? b) passing legislation giving some prisoners the right to vote, but in a way that maintains a form of blanket restriction? c) seeking to comply by enfranchising the minimum number of prisoners possible consistent with our international legal obligations?

A) Maintaining the Existing Law

[20]      Maintaining the law would likely do lasting damage to the UK’s reputation as a rights-respecting country, as doing so would undoubtedly constitute a violation of its commitment to abide by the decisions of the European Court.[42] Moreover, as the UK’s rationale for retaining restrictions upon prisoner voting rests upon maintaining respect for the rule of law, flouting a judgment in this way would undermine the UK’s claim to moral authority.

B) Maintaining some form of automatic restriction

[21]      As noted in paragraph 19 above, removal of the right to vote on the basis of sentence length will potentially be regarded by the European Court as a proportionate restriction upon the qualified right to vote, especially in light of the Scoppola decision’s acceptance of the Italian disqualification from voting of prisoners serving sentences of more than three years.[43] Much depends on the point selected by Parliament at which such a disqualification would apply. I would consider that option 1 under the Draft Bill (removal of the vote from prisoners serving four years or more) would be justifiable in light of the level of criminality (and thereby societal harm) displayed by individuals subject to such sentences. The removal of the vote could be justified as a proportionate punishment in such cases and would provide a long-term legislative solution to this issue.

C) Minimum Compliance

[22]      Minimum compliance with international obligations is, by definition, compliance. In light of the protracted nature of the prisoner voting saga, I would believe that the European Court would accept legislation under option 2 (removal of the vote from prisoners serving six months or more) as a good-faith effort by the UK Parliament to respond to the repeated judgments against the UK. It must be emphasised, however, that this legislative response does not carry with it the virtue of longevity (especially in light of paragraph 15 above). The ECHR is a ‘living instrument’,[44] and what is accepted by the Court as minimal compliance today would not necessarily remain so in the medium term as a European consensus develops on the voting rights of prisoners. In particular, it is worth noting (in light of paragraph 4 above) that this solution would see a narrower section of prisoners able to vote than under the Representation of the People Act 1948.

Would giving prisoners the right to vote have any significant administrative impact on either the prison system or the Electoral Commission?

[23]      Much would depend on the mode by which prisoners would be given the vote. The Draft Bill proposes that prisoners would exercise the vote by post or by proxy,[45] which in light of the number of individuals who stand to be enfranchised (relative to the size of the electorate), even under option 1, would impose no special burdens.

Is there any evidence to suggest that allowing prisoners to vote would have a significant impact on particular constituencies?

[24]      Again, much would depend on the constituency in which prisoners would be given the vote. The Draft Bill proposes prisoners exercising the vote in the constituency in which they were last resident.[46]  This would impose no special burdens on constituencies which contain prisons.

What lessons can be drawn from the experience of other countries regarding prisoner voting?

[25]      Ireland and Canada, both comparable common-law countries, have in the last decade enfranchised their entire prison populations without manifest administrative difficulty.[47] Ireland legislated in reaction to the Hirst decision, whereas Canada legislated in response to a ruling by its own Supreme Court. The rationale behind that ruling should provide pause for thought for legislators tempted to dismiss outright the right of prisoners to vote. As the majority ruled, ‘the wholesale disenfranchisement of all penitentiary inmates, even with a two-year minimum sentence requirement, is not demonstrably justified in our free and democratic society’.[48] No one suggests that the UK is a less confident or less mature democracy than Canada, or Ireland, and it is difficult therefore to claim that social norms or the democratic process will be threatened by allowing a measure of prisoner enfranchisement.

June 2013

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