UNCLASSIFIED

VEP 0033

Written Submission by H M Government VEP 0033

A.              Executive Summary

1. Whether those convicted of a crime and sent to prison should have the right to vote is a contentious issue.

2. Prior to the Forfeiture Action of 1870, convicted traitors and felons forfeited their lands; as the franchise at this point was based on landownership, there individuals therefore lost their right to vote. Those convicted of a misdemeanour (a less serious crime) did not lose their property on conviction and therefore were not legally disenfranchised; however the fact of their imprisonment would have physically prevented them from voting if they were detained on the day of a poll as no alternative voting provision was made. The Forfeiture Act 1870 removed the rule by which felons forfeited their lands, but provided that those convicted of a treason or felony, and sentenced to penal servitude, imprisonment with hard labour or imprisonment exceeding 12 months, were disenfranchised for the duration of their sentence. The position in relation to misdemeanours remained unchanged. Those convicted of a misdemeanour, or convicted of a felony and sentenced to 12 months imprisonment or less, were technically able to vote until 1969, and in the1950 general election some did due to the introduction of postal voting. The distinction between misdemeanours and felonies was removed in 1967. From that point until 1969 only those convicted of treason were barred from voting.

3. The Representation of the People Act 1969 introduced a specific provision that convicted prisoners were legally incapable of voting during the time that they were detained in a penal institution. This provision was later consolidated in the Representation of the People Act 1983.

4. There are a range of different approaches to this issue internationally – a summary of the current position amongst Council of Europe member states can be found at Annex C.

5. In the UK, the context for the recent debate has been the judgments of the European Court of Human Rights (ECtHR), which have prompted discussion in Parliament about these important issues. In passing judgment in the case of Hirst (No. 2), the ECtHR found the UK’s current blanket ban on prisoner voting to be “general, automatic and indiscriminate” and concluded that it was in breach of Article 3 of Protocol 1 of the European Convention on Human Rights (A3P1, ECHR). In light of this, in the case of Greens and MT, the ECtHR required the Government to bring forward legislative proposals to amend our current legislation in order to be compliant with A3P1 ECHR. A draft Bill was therefore published on 22 November 2012.

6. It remains the Government’s view, as the Attorney General argued in front of the Grand Chamber in the case of Scoppola, and more recently in the Supreme Court in the cases of Chester and McGeoch, that the ban on all convicted prisoners voting remains appropriate. However, there is clearly a need to respond to the judgments of the ECtHR and allow Parliament to have its say.

7. As a party to the ECHR, the UK is under an international law obligation to implement ECtHR judgments against it and we take this obligation seriously. The number of violations found against the UK by the Court is low and as reflected in successive annual reports published by the Committee of Ministers of the Council of Europe and the ECtHR, the UK’s record on the implementation of judgments from the ECtHR is strong. It remains the case, however, that Parliament is sovereign and the Human Rights Act 1998 recognises this fact. The Human Rights Act maintains the principle of Parliamentary sovereignty because, if it is impossible to resolve a conflict between a Convention right and a provision of primary legislation, the legislation remains valid and in force, but certain higher courts may grant a declaration of incompatibility drawing the position to the attention of Parliament. The decision on changing the law to comply with the judgment is therefore ultimately for Parliament, but both Parliament and the Committee will of course want to reflect on the consequences for the rule of law and the UK’s international standing of Parliament’s ultimate decision. That is why the Government has put forward three options to a Joint Committee of both Houses for pre-legislative scrutiny.

8. These three options are:

• Option 1 – A ban for prisoners sentenced to 4 years or more.
• Option 2 – A ban for prisoners sentenced to more than 6 months.
• Option 3 – A ban for all convicted prisoners – a restatement of the existing ban.

9. These three options reflect part of the debate on this issue but there are other approaches which the Committee will no doubt wish to consider, each of which raises a number of legal and practical considerations. Some of those are sketched out at section E below, for illustrative purposes.

10. The Government welcomes the Committee’s consideration of this issue and will do the utmost to assist them with their detailed scrutiny. To this end, it has provided the evidence below, which it hopes the Committee will find useful.

B.              Litigation on prisoner voting

The Hirst (No. 2) case

11. In 2001, the UK High Court dismissed the cases of Pearson and Martinez v Secretary of State for the Home Department and Hirst vs. HM Attorney General. Mr Hirst, a prisoner serving a life sentence for manslaughter, was seeking a reversal of an Electoral Registration Officer’s (ERO’s) decision not to register him to vote on the grounds that the decision was incompatible with A3P1 ECHR.  The High Court ruled that barring convicted prisoners from voting had a legitimate purpose and deferred to Parliament’s judgment on the question of whether the level of restriction was proportionate. They therefore concluded that the bar was compatible with the ECHR.

12. Mr Hirst sought leave to appeal to the Court of Appeal, but was refused. The case was taken to the European Court of Human Rights (ECtHR) as Hirst vs. United Kingdom (No.2) and in March 2004 the ECtHR ruled in favour of Mr Hirst.  The Government sought a referral of the Court’s judgment to the ECtHR’s Grand Chamber and, in October 2005, the Grand Chamber held by a majority of 12 to 5 that section 3 of the UK’s Representation of the People Act (RPA) 1983 – the blanket ban of all serving prisoners from voting – contravened A3P1 ECHR. 

13. The Grand Chamber noted that the sentencing courts in England and Wales make no reference to disenfranchisement and that it was not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there was any direct link between the facts of any individual case and the removal of the right to vote. 

14. The Grand Chamber also noted there had been no substantial parliamentary debate on the ongoing justification for the UK’s current restriction in light of current human rights standards.

15. While the Grand Chamber accepted that section 3 of the RPA 1983 pursued the legitimate aims of preventing crime by sanctioning the conduct of convicted prisoners and enhancing civic responsibility and respect for the rule of law – and noted the wide margin of appreciation in this area - the Court nonetheless found the blanket restriction on prisoners voting to be disproportionate. It deemed the RPA 1983 a ‘blunt instrument’, which took away the right to vote from a significant category of persons in a way that was indiscriminate.  In the court’s view, such a “general, automatic and indiscriminate” ban had to be seen as falling outside any acceptable margin of appreciation. The Court, however, declined to provide guidance on what restrictions on UK prisoners voting would be compatible with the Convention.

UK domestic litigation post-Hirst (No. 2)

16. Since the Hirst (No. 2) Grand Chamber judgment in 2005, there have been a number of prisoner voting rights cases in both the domestic courts and the ECtHR.

17. In the domestic cases, the courts have taken Hirst (No. 2) into account - as they are required to do by the Human Rights Act - and taken the ECtHR’s finding that section 3 RPA 1983 is incompatible with the ECHR as the starting point for their judgments.  In one domestic case, Smith v Scott (Registration Appeal Court, 2007), the court granted a declaration of incompatibility under the Human Rights Act 1998. In all other cases, notably Toner & Walsh (Northern Ireland High Court 2007), Chester (Court of Appeal, 2009), Tovey (High Court, 2011), and McGeoch (Court of Session, 2011), the Courts have declined to grant further declarations of incompatibility, award damages, or strike down the relevant legislation.

18. The domestic courts have consistently declined to express a view on which prisoners should be given the vote by making declarations in favour of particular prisoners. They have relied on the margin of appreciation afforded by the Strasbourg Court and the traditional arguments that Parliament should be permitted to reach its view.

19. On the 10 and 11 June this year the Supreme Court heard appeals in two of the domestic cases mentioned above – Chester and McGeoch. Mr Chester was convicted of murder and sentenced to life imprisonment in 1978.  He challenges his exclusion from voting at parliamentary elections on the basis of human rights law, and challenges his exclusion from voting in elections to the European Parliament on the basis of both EU and human rights law. Mr McGeoch was convicted of murder in 1999 and given a life sentence.  He challenges his exclusion from voting in European Parliamentary elections, Scottish Parliamentary elections and local elections, relying solely on EU law. The judgment of the Supreme Court is awaited. 

ECtHR case law post-Hirst (No. 2): Greens and MT; Frodl; Scoppola

20. By November 2010 there had been approximately 2500 claims made to the ECtHR by UK prisoners seeking voting rights. In view of the large number of claims and the time that had elapsed since the original Hirst (No. 2) judgment, the Court decided to adopt a “pilot judgment procedure” in dealing with the cases.  This procedure is a technique developed by the Court for dealing with high volumes of repetitive cases, where the Court decides a 'leading' case or cases.  The other cases are then expected to be returned to the domestic system to make use of the remedy created in response to the lead, or pilot, judgment, rather than be adjudicated by the ECtHR itself.

21. The pilot judgment for the UK was Greens and M.T. v United Kingdom. In this case, in November 2010, the ECtHR again found a violation of A3P1 ECHR, holding that the UK must “(a) bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the [RPA 1983] and, if appropriate, the [European Parliamentary Elections Act 2002] in a manner which is Convention-compliant; and (b) enact the required legislation within any such period as may be determined by the Committee of Ministers”.  Again, the Court declined to provide guidance as to what restrictions would be compatible with the Convention, commenting that it was for the UK Government in the first instance to decide how to achieve compliance. The clone cases were duly suspended pending implementation of the judgment.  Both the applicants and the Government requested that Greens and MT be referred to the Grand Chamber, but these requests were refused.

22. In addition to this case against the UK, there were two other significant prisoner voting rights cases brought before the ECtHR during this period.  The first was Frodl v Austria, which was decided in April 2010.  In Frodl, the ECtHR held that Austria had breached A3P1 ECHR by disenfranchising the applicant, who was convicted of murder and sentenced to life imprisonment.  The Court found Austrian law, which disenfranchised prisoners serving more than one year in prison for crimes committed with intent, and under which disenfranchisement continued for six months after custody ended, to be disproportionate. The Court noted similarities with – and placed heavy reliance on – Hirst (No. 2) but appeared to have significantly narrowed the margin of appreciation afforded to contracting states.  Specifically, it said:

“Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings.” (para 28)

23. Accepting in Frodl the legitimate aims the UK put forward in Hirst (No. 2), the Court applied the “test” set out in Hirst (No. 2):

“Nevertheless, the Court agrees with the applicant that section 22 of the National Assembly Election Act does not meet all the criteria established in Hirst (No. 2) (cited above, § 82). Under the Hirst (No. 2) test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions (ibid., § 82).”

“The essential purpose of these criteria is to establish disenfranchisement as an exception even in the case of convicted prisoners, ensuring that such a measure is accompanied by specific reasoning given in an individual decision explaining why in the circumstances of the specific case disenfranchisement was necessary, taking the above elements into account. The principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned (ibid., § 71).” (para 34-35)

24. Austria applied to have the Frodl case referred to the Grand Chamber, but the request was refused.  Although the judgment was directly binding on Austria (and not the UK), this was significant to the UK since it formed part of the wider body of ECtHR case law. 

25. The second ECtHR case of significance is Scoppola v Italy (No. 3).  Under the Italian criminal justice system a ban from public office, which also entails the loss of the right to vote, is an ancillary penalty, which is made in connection with a number of specific offences, regardless of the duration of the sentence imposed.  These offences include extortion, embezzlement, certain offences against the judicial system and offences involving abuse and misuse of the powers inherent in public office. In addition to this a sentence of life imprisonment, or to imprisonment for no less than five years, entails a lifetime ban from public office, regardless of the offence. A sentence of imprisonment for not less than three years entails a five year ban from public office, again, regardless of the offence.  An offender can earn back the right to vote if they are granted ‘rehabilitation’. Rehabilitation terminates any ancillary penalties and can be granted three years after the day on which the main penalty has been completed or otherwise extinguished, provided that the offender has displayed consistent and genuine good conduct.
26. In January 2011, the ECtHR decided the case of Scoppola (No.3) and found that the permanent forfeiture of his right to vote was a violation of A3P1.  While it was not disputed that the permanent voting ban imposed on the applicant had a legal basis in Italian law, the Court’s view was that the application of that measure was “automatic” since it derived as a matter of course from the main penalty imposed on him (life imprisonment).  It was therefore in the Court’s view a blanket ban, applied indiscriminately, without consideration of a court of the crime’s nature and seriousness.  Taking into account the decision in Frodl v Austria which required a court to consider whether an individual should lose his vote they found that the Italian legal provisions were incompatible with A3P1.

27. In June 2011, Italy sought a referral of the Scoppola case to the Grand Chamber. The Grand Chamber accepted the referral, and a hearing was set for November 2011.The UK Government requested an extension to the Greens & MT six-month deadline to take account of the referral of Scoppola (No.3). The ECtHR granted an extension of six months from the date of the final Scoppola judgment once handed down by the Grand Chamber. 

28. The UK Government intervened in the Scoppola case requesting that the Court revisit their judgment in Hirst (No. 2). In November 2011, the Attorney General appeared personally at the  Grand Chamber hearing arguing that prisoner voting was an issue of social policy for member states; that the ECtHR should stick to its approach of affording a ‘wide margin of appreciation’ on the matter; but that the margin as defined in Hirst (No. 2) was too narrow, and that the UK’s approach of a bar on voting attaching to those committing a crime that attracted a custodial sentence should be regarded as falling within the margin of appreciation.

29. On 22 May 2012, the Grand Chamber announced its judgment in the case of Scoppola (No.3) and reversed the lower Chamber’s decision. The Grand Chamber found that there was no violation of A3P1 and that Mr Scoppola’s disenfranchisement was not disproportionate.  The Grand Chamber reaffirmed the judgment of Hirst (No.2), but accepted the UK’s argument that member states should have a wide discretion in how they regulate a ban on prisoners voting, and that intervention of a judge was not an essential criteria for disenfranchisement.  This essentially overruled the guidance in the Frodl judgment. 

30. The final Scoppola (No. 3) judgment meant that the UK then had six months from the date of this judgment to bring forward legislative proposals to amend domestic legislation to bring it in line with the ECHR (i.e. by 23 November 2012).  A draft Bill was published on 22 November. 

C.              The approach in the draft Bill

31. The Government took the decision to introduce a draft Bill on the basis that it was important that Parliament was given the opportunity to consider a range of options.

32. There are of course a wide range of factors which could be used to determine whether or not a prisoner should lose their right to vote – as can be seen from Annex C, some Council of Europe states have a system which employs judicial discretion and some tie the loss of the right to vote to conviction for particular types of crime.  In publishing the draft Bill, the Lord Chancellor and Secretary of State for Justice explained to the House of Commons:

“The draft Bill sets out three different potential approaches for the Committee to consider. Presenting a draft Bill with that range of options reflects the spectrum of views that we know exist on this question. However, it will of course be for the Committee, once established, to consider whether approaches beyond those canvassed in the draft Bill should also be considered by Parliament in due course. The first approach in the draft Bill is for prisoners sentenced to less than four years to be entitled to vote. A four-year bar has previously been discussed by Parliament. The second approach would limit the vote to prisoners sentenced to six months or less. The final approach would effectively restate the current position that anyone incarcerated following conviction would not have the vote. The Committee will want to consider these approaches, their consequences if they were in due course adopted by Parliament, and whether there are other options—for example, the Italian system, found to be compliant by the Court, which disfranchises prisoners post-release. The Committee will, I am sure, consider evidence on this and other approaches.”
 

Sentence length as an approach to prisoner enfranchisement

33. In the draft Bill, those options that enfranchise prisoners link disenfranchisement to the length of the sentence imposed on the offender. The reasoning behind such an approach is that, the more serious the offence that has been committed, the greater the justification for removing the right to vote from the offender when in prison. Tying entitlement to vote to sentence length has the benefit of establishing a clear relationship between the seriousness of the offence, or offences, and suspension of the right to vote.

34. Tying enfranchisement to sentence length was one of the approaches canvassed in the consultation paper which was published in December 2006, alongside retaining the current ban, allowing an element of judicial discretion and enfranchising all tariff-expired life sentence prisoners.[1]The second stage consultation, which was published in April 2009 contained a range of options all based around sentence length. These were: the retention of the right to vote by prisoners who have been sentenced to a period of less than 1 year of imprisonment; the retention of the right to vote by prisoners who have been sentenced to a period of less than 2 years of imprisonment; the retention of the right to vote by prisoners who have been sentenced to a period of less than 4 years of imprisonment; and the retention of the right to vote by prisoners who have been sentenced to a period of less than 2 years’ imprisonment, coupled with a facility for prisoners who have received sentences of between 2 and 4 years to apply to their sentencing court to be enfranchised. In the WMS that was laid in December 2010, the option put forward was to enfranchise those prisoners who were sentenced to less than 4 years imprisonment, along with the ability for the sentencing judge to remove that right if they consider it appropriate. The length of prison sentences clearly varies between a few weeks at the lowest end, to life imprisonment at the highest – in considering the options in the draft Bill there is a decision to be made by Parliament as to where it would draw a line along that spectrum below which prisoners could vote. 

35. The arguments for a sentence length approach might be said to be:

• clarity in reflecting seriousness of offending.  As well has having regard to the five purposes of sentencing[2], a Judge or Magistrate considers many factors when considering the appropriate sentence. These include the seriousness of the offence; the harm that has been caused to the victim; the culpability of the offender; the previous criminal record of the offender; and the offender’s personal circumstances.  If sentence length is used to determine the enfranchisement of prisoners, the suspension of the right to vote will only occur where those factors are such as to have led a sentencer to conclude that not only is the offence such that it warrants a custodial sentence rather than some other form of punishment, but also that a term of a some length is appropriate; and specific consideration will have been given in each case to the imposition of a custodial penalty and to its length;

• practical considerations.  The Government believes that – although it would require consequential legislative change - a system of prisoner enfranchisement based on sentence length would be relatively straightforward to administer.  The workability and cost of any system is an important consideration.

36. Reflecting this, two of the three options in the Bill set out a sentence length approach, with the “bar” above which prisoners would lose the right to vote upon being sentenced to custody being set at different points on the spectrum:

37. Option 1 draws the line at those prisoners sentence to less than 4 years. There is some precedent for using 4 years as a distinction between short and long term prisoners. The Criminal Justice Act 1991 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have both used 4 years as an indicator of seriousness. The Legal Aid, Sentencing and Punishment of Offenders Act provided for extended determinate sentences (EDS) to be available for offenders who commit specified serious violent, sexual and terrorism offences and are considered dangerous by the courts. For the courts to impose an EDS the index offence has to merit a custodial term of four years or more (or there must be previous serious offending). Relevant statistics relating to this option can be found at Annex B.

38. Option 2 draws the line at prisoners sentenced to six months or less. It would, of course, enfranchise fewer prisoners than Option 1. Relevant statistics relating to this option can also be found at Annex B.

39. Option 3, which would effectively maintain the existing bar on voting by anyone detained and serving a custodial sentence, has been included in the draft Bill as the Government believes it is important that Parliament has the opportunity to consider the issues and options fully – including retaining the current ban.  Both the Committee and Parliament will want to reflect on the consequences and potential implications of this option for the rule of law and the UK’s international standing.

D.              Compatibility with the ECHR

40. As the Voting Eligibility (Prisoners) Bill published on 22 November 2012 is in draft, it was not necessary for the Government to make a statement under section 19 of the Human Rights Act 1998.

41. However, to the extent that Options 1 and 2 in the draft Bill engage rights set out in the ECHR, the Government is of the view that the provisions are, on balance, compatible with those rights.

42. Both options 1 and 2 are based on sentence length, setting the bar at two different points. In Scoppola (No.3), the ECtHR found the Italian system, which disenfranchises prisoners based on sentence length, compatible. It is possible to argue that a ban determined only by sentence length remains “general, automatic and indiscriminate” and as such must be incompatible with A3P1. However the Government does not consider that such arguments would prevail in a challenge to option 1 or option 2. 

43. The Court in the Scoppola (No. 3) case noted that a ban based on sentence length showed the legislature’s concern to apply the ban only in connection with offences which the courts consider to warrant a “particularly harsh sentence”, and that the sentence itself would reflect the offender’s personal situation and any mitigating or aggravating circumstances.[3] In addition, the court noted that a “large number” of convicted prisoners were not deprived of the right to vote. The Government is of the opinion that the same arguments can be made in relation to both options 1 and 2 [See statistics section at Annex B].

44. It is true to say that countries vary in their sentencing practices, so the committee may wish to consider what, in our penal system, constitutes a ‘particularly harsh sentence’. The Attorney General argued in the Government’s intervention in Scoppola (No. 3) that in the UK’s legal system to be sentenced to immediate custody signified a serious sentence, as “in England and Wales, only 7% [figure accurate as of November 2011] of convictions result in a term of imprisonment.” The Attorney General added that “there is, accordingly, a clear correlation between those most serious of committed crimes and the additional step of disenfranchisement; between such crimes and the legitimate aims pursued by restrictions upon voting by convicted prisoners.”

45. Option 3 reformulates the current general ban on prisoner voting; it does not permit sentenced prisoners to vote. The ECtHR affirmed in Scoppola (No. 3) its judgment in Hirst (No. 2) that “when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1”. The Government is therefore unable to say that the Option 3 provisions are compatible with A3P1.

46. As mentioned above, the UK Supreme Court heard two prisoner voting rights cases (Chester and McGeoch) on 10-11 June 2013. The Government argued that the Supreme Court should not follow the judgment of the ECtHR in Hirst (No. 2) and should instead rule that the ban on voting by convicted prisoners does not contravene A3P1 ECHR. It remains the view of the Government that the ECtHR has afforded the UK too narrow a margin of appreciation when regulating the voting rights of prisoners and that the ban is not ‘automatic’ as it only takes effect when a court considers that an offence is serious enough to merit imprisonment and then only for the duration of that imprisonment.

47. The Scoppola (No. 3) judgment has shown that there is considerable flexibility in how this issue is addressed. It will ultimately be for Parliament to reach a decision. In light of this, we would welcome the Committee’s views on the full range of options for responding to the judgment in order that Parliament can consider the issue fully and reach its conclusions.

E.              Potential alternative approaches

48. The draft Bill adopts the approach of offering two options using sentence length as a proxy for seriousness for the reasons set out at paragraph 35 above.  There are other approaches that the Joint Committee and ultimately Parliament might wish to consider. The Government considers that it would be helpful for the Committee to consider some of these options. It does not seek here to set out an exhaustive list of these alternative approaches, but instead to draw the committee’s attention to some of the possibilities which the Committee may want to address as part of its scrutiny. Some at least of these approaches might be capable of, or require, combination with a “sentence length” approach, if the overall intended effect were to produce a system compatible with the ECHR.

9. Distinctions based on types of offence or class of offender

49. The Committee might wish to consider means other than sentence length imposed by the court as factors in, or alternatives to, ways in which the withdrawal or grant of the vote could be linked to the concept of seriousness of offending.   Options for this might include:

The court in which the offender is tried and sentenced – for example, those offenders who are sentenced in a Magistrates Court could retain the right to vote whilst those who are sentenced in a Crown Court are disenfranchised.

• This approach should be relatively administratively straightforward.

• It could be argued that this approach would not necessarily take into account the seriousness of the offence or the individual circumstances of the offender, as the court in which an offender is tried is based on the categorisation  of offence (whether it is a summary offence or an indictable offence).

• There are some offences – those which are ‘triable either way’ – where the Magistrates’ Court decides whether the case can be dealt with in that court, or whether it should be tried by the Crown Court and the defendant can also elect to be tried in the Crown Court. These include offences such as burglary and drugs offences. The Committee may wish to consider whether it is desirable to add the question of disenfranchisement as an aspect of this decision.

• Magistrates Courts can impose a maximum sentence of 6 months imprisonment for a single offence, or 12 months for more than one offence. However it is possible for an offender sentenced in a Crown Court to be given a shorter sentence. This could lead to an arguably inconsistent approach to disenfranchisement, again because it would be based on the class of offence and the mode of trial rather than the individual offending. The Committee may wish to consider this.

The type of offence for which the offender is convicted.

• The Committee might wish to consider the possibility of a system where whether or not a prisoner can vote is linked to the type of offending. For example, offences that some might see as having undermined society (such as election fraud or terrorism offences, as in the German system) might attract disenfranchisement. Other offences which cause a lesser degree of harm might not. This would be in line with elements of systems that exist in other Council of Europe countries (for example under the Italian system there are some offences that attract a ban on voting regardless of the sentence that is imposed).  

• There would be a number of issues that may need to be considered in relation to such a system, including the degree to which it was regarded as acceptable by Parliament and the public for offenders who might potentially be serving long sentences to retain the vote on the basis that they were not convicted of a particular offence.

• Further, some offence types encompass a very wide spectrum of individual offences from the relatively minor to the very serious. If considering the use of individual offences, the Committee might want to consider what criteria could be used to identify which specific offences should attract disenfranchisement and which should not.  

The category of offender.

• After sentencing and reception, adult male and female prisoners are assigned to a security category and allocated to an appropriate prison accordingly. The committee might wish to consider whether a prisoner’s right to vote could be linked to the security category or type of prison in which they are held. However, categorisation is an administrative decision based on risk of escape and the risk a prisoner would pose to the public if they did escape. It is therefore not directly linked to the seriousness of the offence, the facts of the case, or other factors such as the level of rehabilitation an individual has undergone.

Allow sentencers to decide on whether the franchise should be withdrawn in individual cases

• Some Council of Europe countries have a system which incorporates an element of judicial discretion.

• There are a number of potential arguments for allowing the sentencer to take a decision on enfranchisement – including their independence from Government and their close knowledge of the details of both case and offender.

• The Committee might also wish to consider the additional burden that would be placed on sentencers if they were asked to take an additional decision about enfranchisement. Additionally, given the number of factors that a sentencer currently takes into account when deciding on the appropriate sentence, it would need to be considered what, in addition to these factors, they would consider to make a decision about whether to remove the right to vote from a particular offender. If a decision were to be made by a sentencer, it would need to be considered whether that decision could then be appealed by the offender.

50. The Government invites the Committee to consider these and any other approaches, together with other potential factors which could be used to determine whether or not a prisoner should lose their right to vote.

ii.              Earning back the right to vote

1. It might be possible to design a system where some prisoners were given the opportunity to ‘earn back’ their right to vote by meeting certain criteria.  Something similar can be seen in the Italian system, where “rehabilitation” may be granted after the sentence has been served. In such a system, the general ban on sentenced prisoners voting could remain but, for example, prisoners could earn the right back by successfully completing a ‘citizenship course’ whilst detained. The rationale for such an approach might be that it would require prisoners to prove their engagement with their rights and responsibilities as a citizen and it therefore could be seen to contain a rehabilitative aspect. There are a number of potential issues which would need to be considered, for example:

• What the level of cost and administrative burden to the National Offender Management Service (NOMS) of providing the necessary course would be. This would clearly be dependent on the nature of the course (for example whether it was a taught ‘module’ or self-guided learning) and what the requirement would be for making a course available (for example whether it was available on a rolling basis or only in the run up to elections) - particularly were there a requirement for the course to be available at any time. The Committee may wish to consider how additional costs might be justified;

• How any course could be made widely accessible given, for example, the language and educational needs of the prison population;

• What might the criteria for enfranchisement be (for example would it be based on completion, or would completion to a particular standard be required) and how would it be certified that the prisoner had met the required criteria.

• The implications of providing citizenship education or training for detained prisoners that was not also available to the wider public.

iii.              Disenfranchisement post-release for the most serious offenders

51. Under the Italian system, some of those who are sentenced to custodial sentences continue to be disenfranchised after their release from custody. The Committee may wish to consider the arguments for and against extending disenfranchisement beyond release for those who are sentenced to lengthy terms of imprisonment for the most serious offences. On one view this would emphasise the connection between the seriousness of a transgression and the removal of rights as a citizen, and if connected with the licence period for serious sentences would tie disenfranchisement to the whole sentence rather than just the custodial element. However, as well as presenting questions of what the policy rationale for such a system would be, this would also present a number of practical issues which the Committee may wish to consider:

• EROs would need a mechanism by which they could identify those individuals who are not permitted to register to vote as a result of a post detention ban. This could require new data sharing protocols, and may raise data protection implications. It would be necessary to consider the cost of any such system, and how the cost would be justified and met;

• A system along these lines could have a wider impact on the role of both probation officers and EROs, and the Committee may wish to consider the consequence of this for their existing duties.

F.  Elections to which legislation would apply

52. The Bill as currently drafted provides for any enfranchised prisoners to be able to participate in all elections for which the UK Parliament is responsible for the franchise, for which they would otherwise be eligible. The decision to adopt this approach in the draft Bill was taken for the sake of simplicity. 

53. A3P1 ECHR states that ‘The High Contracting 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 legislature’. It is the Government’s position that the terms of the judgments in Hirst (No. 2) and Greens and MT apply only to elections to the UK Parliament and the European Parliament.

54. EU law contains certain rights in relation to European Parliamentary elections and “municipal” elections. Articles 20 and 22 TFEU provide that EU citizens residing in a Member State other than that of their nationality have the right to vote and to stand in the European Parliamentary elections and municipal elections under the same conditions as nationals of the state of residence.  The detailed arrangements for the exercise of these rights are set out in Directives 93/109/EC and 94/80 EC. In particular municipal elections concern the basic local government units listed in the Annex to Directive 94/80/EC. The scope of these EU law rights is being considered by the Supreme Court in the Chester and McGeoch cases.

55. The Committee may wish to consider whether the final legislation should extend to all elections, or to certain elections only.

56. A list of all the elections which the Bill as currently drafted covers is attached at Annex E. At Annex D is an explanation of the Local Government and Parliamentary franchises. 

G. Territorial Extent

57. The Final Bill as introduced will extend throughout the United Kingdom. As set out below, there are a number of practical considerations relating to how the legislation will work in Scotland and Northern Ireland, and so for the sake of simplicity the draft Bill is drafted for England and Wales only at present. However, the Government has committed to working with the relevant devolved administrations to make the appropriate adjustments to ensure the final Bill applies consistently throughout the United Kingdom. 

58. The franchise in relation to the Westminster Parliament, the European Parliament, the devolved parliaments and local government elections is reserved to Westminster (see Schedule 5 to the Scotland Act 1998 and Schedule 2 to the Northern Ireland Act 1998). Legislative competence for criminal justice matters, including prisons, is devolved in Northern Ireland and Scotland, as is the conduct and administration of local government elections in Scotland. When sections 1 to 3 of the Scotland Act 2012 come into force, some aspects of the conduct and administration of elections to the Scottish Parliament will be transferred from UK government Ministers to Scottish Ministers.

59. This raises a number of practical considerations in relation to how the Bill as currently drafted would apply UK wide, which the Committee may wish to consider. For example,

• How absent vote arrangements in Northern Ireland might be amended for prisoners. Absent voting in Northern Ireland is more restricted than in Great Britain.

• Whether the definitions in the draft Bill cover the different arrangements in Scotland and Northern Ireland. For instance, with regard to the definition of ‘life sentence’ there may be equivalent indeterminate sentences in Scotland and Northern Ireland that would need to be included.

WRITTEN EVIDENCE – ANNEXES

Annex A – The Electoral Registration System

In the draft the Bill, the Government has set out one possible way in which sentenced prisoners who may be enfranchised under the options in the Bill might register under the current electoral registration system – but the Committee may of course wish to consider other system. A short summary is included below to assist the Committee’s with its consideration of the practical implications of proposals for prisoner enfranchisement.

Current household registration system

Under the current household registration system most applications to be added to the electoral register are made during the annual household canvass period. This begins in July/August and electoral registers must be published by 1 December. Prisons are not canvassed by Electoral Registration Officers; this is expressly prohibited by section 10(3)(a) of the Representation of the People Act 1983 and this would not be changed by the draft Bill.

If the provisions in the draft Bill were adopted an eligible prisoner would therefore need to initiate their own registration by completing a registration application. Under the provisions in the Bill as currently drafted, eligible prisoners would register at the address in the UK at which they were resident immediately before they became a prisoner or, if the prisoner has no such address, at an address in the UK where they have resided when they were not a prisoner. If the prisoner has no previous residence in the UK (for example, if they were previously of no fixed abode), the draft provisions allow the prisoner to register at a place where they spent a substantial amount of time when not a prisoner. A prisoner would be barred from registering in the constituency in which they are detained, unless they were treated as resident in that constituency through one of the routes described above.

All applications would have to be accompanied by a statement from the prison governor or director (or his delegate) that the prisoner is eligible to vote (i.e. not barred from voting as a consequence of their sentence). Prisoner registrations would last for 12 months, at which point the prisoner would need to submit another application. In order to vote, the prisoner would need to apply for either a postal or proxy vote by completing an application for an absent vote and returning this to the Electoral Registration Officer (ERO).[4]

If a person was already on the register when they are sent to prison and their sentence was such that they were not disenfranchised, their existing registration would remain in place so long as their period of detention was so short that they were regarded as remaining resident at their registered address. However, if they wanted to make a new application for registration while they were in prison, they would have to do so in the manner set out above.

Individual Electoral Registration (IER) system

The Committee will wish to note that from the summer of 2014 in England and Wales and 1 October 2014 in Scotland, all new applications to register must be Individual Electoral Registration (IER) applications made on paper or through the IER Digital Service. Those who become eligible, register for the first time, or move house will need to make an IER application. During the transition to IER all current registers will be matched against trusted government databases, with most electors being added to IER and those that did not match being invited to re-register.

Individuals making an application from the summer of 2014 (1 October in Scotland) will be required to supply their national insurance number (NINO) and date of birth as part of their application; this data will then be verified against trusted government databases before an application is accepted.

The committee may wish to consider how any eligible prisoners under the options in the Bill would register to vote under this new system.

Annex B - Voting Eligibility (Prisoners) Draft Bill – Data on prison populations and receptions

Note on the information contained in the tables below

The prison population tables presented in this document are provided to give an indication of number of prisoners who may be enfranchised at a given election if Parliament chose to enact one of options 1 or 2 of the Voting Eligibility (Prisoners) Draft Bill. These figures are based on the prison population as at 30 June 2012 for England, Wales and Northern Ireland, and a 2011-12 average for Scotland.

• Option 1 of the Draft Bill would replace the current ban on prisoner voting with a voting ban for prisoners sentenced to 4 years or more. It would therefore enfranchise prisoners sentenced to less than 4 years.

• Option 2 would replace the current prisoner voting ban with a voting ban for prisoners sentenced to more than 6 months, and would therefore enfranchise prisoners sentenced to 6 months and less.

It is not possible to give an exact figure for the number of prisoners who would be entitled to vote in a given future election if either option were enacted. This is because the prison population is not static and fluctuates throughout the year, as well as from year to year. Exactly how many prisoners might be able to vote depends on how many prisoners sentenced to the relevant custodial term are serving that sentence in prison when an election is held, and have had sufficient time to be added to the register. So prison population data appears the best available proxy for estimating the numbers of prisoners who would be eligible to vote in a given future election, since it represents a snap-shot of the numbers of individuals serving sentences of particular lengths on a given day: but it is not an exact predictor of numbers of prisoners who might be entitled to vote under options 1 and 2 in the Bill.  The data given simply shows the breakdown of prisoners serving sentences on a specific day, in this case 30 June 2012.             
 

For completeness we have also included receptions data, which is currently only available for England and Wales (covering those received into prison in the 12 months to June 2012) and Scotland (covering all receptions in 2011-12) to show the flow of prisoners through the prison system in a year. Prison receptions tables are included below showing the total number of persons sentenced to immediate custody of i) up to 4 years, and ii) 6 months and less in a single year. These figures do not represent the number of prisoners who may be eligible to vote in an election, as many would have completed their sentence and left prison before a given election date; it represents the annual flow of prisoners sentenced to different custodial terms across a year.

Given that the Bill as currently drafted applies to all elections, the data here represents those included in the Local Government franchise (which includes EU citizens): the prison population and receptions data provided for England, Wales and Scotland therefore includes prisoners who are aged 18 and over and are UK, EU or Commonwealth nationals. The Northern Ireland data includes all prisoners aged 18 and over as data regarding the nationality of prisoners in Northern Ireland is currently not available.

Data on recalls[5] is reported separately to prisoner population by length of sentence data. It was therefore necessary, in some instances, to apportion recalls appropriately to arrive at the total number of prisoners, as some recalled prisoners would be serving sentences below the thresholds set by the options. The process for doing this is set out in the end note at the end of this annex.

Data is presented separately for England and Wales, Scotland, and Northern Ireland due to differences in data quality, collection methods and the categorisation of prisoners by sentence type.

Summary

Tables 1 and 2 provide summaries of prisoner population on 30 June 2012 for England, Scotland and Northern Ireland and the 2011-12 average for Scotland. Tables 3 and 4 show receptions data.  Figures are rounded to the nearest 100.             
 

Prison population
 

Table 1: Population of prisoners sentenced to less than 4 years (immediate custody), age 18+, UK, EU and Commonwealth nationalities in prison on 30 June 2012 for England, Scotland and Northern Ireland and the 2011-12 average for Scotland.

-          * Figures for Northern Ireland represent 18+ prisoners of all nationalities (nationality data not available)

-          England and Wales population figures include a proportion of recalls (see endnote)

-          Percentages calculated using unrounded figures 

Table 2: Population of prisoners sentenced to 6 months or less (immediate custody), age 18+, UK, EU and Commonwealth nationalities in prison on 30 June 2012 for England, Scotland and Northern Ireland and the 2011-12 average for Scotland.

-          * Figures for Northern Ireland represent 18+ prisoners of all nationalities (nationality data not available)

-          England and Wales population figures include a proportion of recalls (see endnote)

-          Percentages calculated using unrounded figures 

Receptions data

Table 3: Receptions of prisoners sentenced to less than 4 years (immediate custody), age 18+, UK, EU and Commonwealth nationalities in 12 months to June 2012 for England and Wales and Scotland receptions 2011-12

-          Percentages calculated using unrounded figures 

Table 4: Receptions of prisoners sentenced to 6 months or less (immediate custody), age 18+, UK, EU and Commonwealth nationalities in 12 months to June 2012 for England and Wales and Scotland receptions 2011-12

-          Percentages calculated using unrounded figures 

The following tables provide prison population and receptions breakdowns by sentence types.

England and Wales

The tables below include data on prison population under the sentences considered, broken down by sentence type. Prison receptions data is also included to illustrate the number of prisoners who would be enfranchised on an annual basis. Figures are rounded to the nearest 100; where this would mean rounding down to zero figures are replaced with an asterisk. 

Table 5: Prison population by sentence length and offence type; age 18+, UK, Commonwealth and EU nationalities, on 30 June 2012

-          Figures may not add to totals due to rounding

-          *In cells marked with an asterisk, figures are positive but round down to zero

-          Population figures include a proportion of recalls (see endnote)

Table 6: Prison receptions by sentence length and offence type; age 18+, UK, Commonwealth and EU nationalities over 12 months to June 2012

-          Figures may not add to totals due to rounding

-          * In cells marked with an asterisk, figures are positive but round down to zero

Scotland

The tables below include data on prison population under the sentences considered, broken down by sentence type. Prison receptions data is also included to illustrate the number of prisoners enfranchised on an annual basis.

Table 7: Prison population by sentence length and offence type; age 18+, UK, Commonwealth and EU nationalities

-          Figures may not add to totals due to rounding

-          Data is a 2011-12 average

-          * In cells marked with an asterisk, figures are positive but round down to zero

Table 8: Prison receptions by sentence length and offence type; age 18+, UK, Commonwealth and EU nationalities

-          Figures may not add to totals due to rounding

-          Data represents total receptions in 2011-12 

-          * In cells marked with an asterisk, figures are positive but round down to zero

Northern Ireland

Due to ongoing data quality issues, prison population and receptions breakdowns by sentence length, type and prisoner nationality are not available for Northern Ireland. The data is being revised and an update publication is expected on 25 July 2013. We will provide updated figures to the Committee shortly thereafter.

Endnote:

The recall population was re-apportioned amongst each sentence length band based on the size of each sentence length band relative to the prison population liable to be recalled. No recalls were apportioned in estimating the total population of prisoners serving sentences of 6 months and less in England and Wales. These prisoners are eligible for release on Home Detention Curfew (HDC) licence before their automatic release date (and could be recalled from that) but they are not currently subject to any licence or recall during the second half of their sentence. Therefore, recalls from HDC represent only a very small proportion in the total population of recalls. In Scotland, prisoners serving sentences of less than 4 years are in most cases not eligible for release on licence – no recalls were therefore apportioned. No recalls were apportioned in Northern Ireland due to low total populations of recalls.    

Annex D – Information on the two principal franchises which operate in the UK

The entitlement to be registered to vote is subject to meeting certain age, nationality and residence criteria and not having a legal incapacity to vote.

There are two different principal franchises in operation in the UK, the UK Parliamentary franchise and the local government franchise.

A person is entitled to be registered as a UK Parliamentary elector in Great Britain if:

• They are a British, Irish or qualifying Commonwealth citizen. Qualifying Commonwealth citizens are those who have leave to enter or remain in the UK, or do not require such leave.
• They are resident in the constituency (subject to certain exceptions, such as registering as an overseas elector[7], a service voter or through a declaration of local connection).
• They are not subject to any legal incapacity to vote (except for age). These legal incapacities are set out below.

• They will be 18 years of age before the end of a 12-month period starting from the next 1 December after the application is made.

A person is entitled to be registered as a local government elector in Great Britain if:

• They are a British or Irish citizen, a citizen of a member state of the European Union or qualifying Commonwealth citizen.
• They are resident in the local government area (subject to certain exceptions, as set out above but excluding overseas electors who cannot register under the local government franchise).
• They are not subject to any legal incapacity to vote (except for age).
• They will be 18 years of age before the end of a 12-month period starting from the next 1 December after the application is made.

Anyone who is entitled to vote in a Parliamentary election is entitled to vote in a European Parliamentary election. In addition, peers who are members of the House of Lords can vote in elections to the European Parliament (provided they are registered as local government electors or as overseas peers). Citizens of member states of the European Union can register in respect of European Parliamentary elections (but not in UK Parliamentary elections unless they also qualify as British, Commonwealth or Irish nationals).  .

The franchise for all other elections (see Annex E) is the same as the local government franchise.

The following categories of elector are all subject to a legal incapacity to vote:

• Members of the House of Lords: Peers who are members of the House of Lords are disqualified from voting at UK Parliamentary elections and so such persons are not entitled to be registered in the Parliamentary register of electors. They do, however, qualify to be registered in the local government register of electors.

• Detained convicted prisoners: A person who has been found guilty of an offence (excluding a person dealt with for contempt of court) and is detained in prison (except for detention in consequence of non-compliance with a noncustodial sentence) is not legally capable of voting and is therefore not eligible to be included in the register of electors. This disqualification applies whether the person is in prison or is unlawfully at large, and regardless of whether or not the person was properly included in the register prior to conviction.

• Offenders detained in a mental hospital: A person who is detained under an order or direction made under the provisions listed in Section 3A of the RPA 1983 or is unlawfully at large when they would otherwise be detained is not legally capable of voting and therefore cannot be included in the register of electors.

• Persons convicted or reported as guilty by an election court of certain corrupt or illegal practices: A person convicted or reported as guilty of certain corrupt practices is legally incapable of being registered to vote for five years from the date of the conviction or report. A person convicted or reported guilty of certain illegal practices is legally incapable of being registered to vote for three years from the date of the conviction or report. A successful appeal against such a conviction or finding would remove the legal incapacity.  For further details see sections 160 and 173 of the Representation of the People Act 1983.

Annex E – List of the elections which are covered by the Bill and their occurrence over the next 5 years

The list below is the elections which eligible prisoners would be able to vote if the current provisions in the draft Bill were adopted.

• UK Parliamentary elections
• European Parliamentary elections
• Scottish Parliamentary elections
• National Assembly for Wales elections
• Northern Ireland Assembly elections
• Local Government elections (including Greater London Authority and mayoral elections) in England, Wales, Scotland and Northern Ireland
• Police and Crime Commissioners in England and Wales

• In addition, local Council Tax referendums and Neighbourhood Planning referendums are possible anywhere in England and referendums on local governance arrangements are possible anywhere in England and Wales.

List of elections 2014 – 2018

*Please note that the number of local authority elections and mayoral elections is subject to change

June 2013

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