2 The history of prisoner voting in
the United Kingdom |
From civic death to statutory
9. In the middle ages those found guilty of felony
or treason were subject to "attainder", entailing the
loss of all civil rightsin effect, "civic death".
Attainder was an assertion that those guilty of either treason
or felony were so "tainted" by their actions that they
could not own or transfer property. Property owned by them was
forfeit to the Crown and, since the entitlement to vote prior
to 1918 derived from property-based qualifications, there was
a legal bar upon those convicted of such serious offences voting.
10. Prisoners convicted of lesser offences (misdemeanours)
did not forfeit their property, and were not therefore subject
to this legal bar. But they were unable in practice to vote while
imprisoned as they could not obtain release to attend the polls.
In 1835 a prisoner called Jones, convicted of a misdemeanour,
sought to gain his liberty in order to be able to vote, but his
arguments were rejected by the court, which held that Parliament
had not put in place a mechanism to enable prisoners to vote.
11. In England, Wales and Ireland the Forfeiture
Act 1870, while retaining the concept of a felony, removed its
practical consequence through the abolition of the confiscation
of property on conviction of serious offences. As this reform
would have allowed some prisoners to meet the property requirements
for the vote, section 2 of the 1870 Act barred any felon sentenced
to more than twelve months imprisonment from voting or standing
as a candidate in an election. This was the first statutory prohibition
on prisoners voting.
12. Under the 1870 Act felons sentenced to less than
twelve months, and those convicted of misdemeanours, were not
subject to an explicit statutory ban on voting. Such prisoners,
however, remained unable to vote, for the same reason Jones had
encountered in 1835: what Lord Sumption has described as "the
absence of the necessary administrative arrangements."
Not only did their incarceration prevent them from attending the
polls, but judicial rulings prevented them from registering at
their home address while incarcerated.
In due course statute also prevented prisoners from designating
a prison as their place of residence for the purpose of the electoral
13. The restrictions imposed under the Forfeiture
Act 1870 reflected an era in which the UK was moving towards,
but had not yet adopted, the democratic principle of one person,
one vote, of equal worth.
The vote was regarded not as a universal right, but as the corollary
of factors such as property, gender and moral worth.
Property qualifications upon the franchise persisted until the
Representation of the People Act 1918; women did not gain the
vote until the 1918 Act, and were not able to vote on the same
basis as men until the passing of the Representation of the People
(Equal Franchise) Act 1928. Additional votes for business owners
and university graduates in general elections were only removed
in 1948. Nineteenth-century
justifications for express removal of the vote from some prisoners
should be understood against this background.
The partial enfranchisement of
14. Whatever its legal basis, it is clear that there
was, in practice if not in statute law, a complete bar on prisoner
voting in the late nineteenth and early twentieth centuries. David
Davis MP said that "there has been a blanket ban since we
have had universal suffrage."
The Government's notes on the draft Bill state that "there
has been some form of bar on prisoners voting in UK legislation
for most of the past 140 years."
15. The late 1940s saw an overhaul of the UK's electoral
arrangements, which for the first time established a mechanism
which some prisoners were able to use in order to vote. Section
8(1) of the Representation of the People Act 1948 introduced postal
voting on a limited basis, for individuals "no longer resident
at their qualifying address". Postal voting allowed those
prisoners who were not subject to statutory disenfranchisement
as a result of the 1870 Act to participate in elections for as
long as they remained registered at their home address.
16. The UK agreed to Protocol 1 of the European Convention
on Human Rights in 1952, and there is evidence that, in the preceding
general election in 1950, prisoners did indeed vote: an article
in The Times reported that "among the postal votes
to be returned in Manchester were a number from prisons in Cardiff,
Lincoln, Preston and Manchester."
Robert Walter MP told us that "when the UK signed up to the
European Convention, it did so against a legal framework in which
sentence-based prisoner voting rights were present, accepted and
The early 1950s also saw questions in the House of Commons on
17. The 1870 Act had not extended to Scotland, where
the ancient concept of "outlawry", analogous to attainder
in its effects, lingered until the mid-twentieth century. The
abolition of outlawry in Scotland under section 15 of the Criminal
Justice (Scotland) Act 1949, combined with the introduction of
postal voting under the 1948 Act, removed any express limitation
on prisoners voting in Scotland.
18. Under section 1 of the Criminal Law Act 1967
the distinction between felonies and misdemeanours was abolished.
The effect of Schedule 3 of the Act, alongside Schedule 2 of the
Criminal Law Act (Northern Ireland) 1967, was to amend section
2 of the Forfeiture Act 1870 by removing any reference to felony,
with the result that the disqualifications set out in the 1870
Act now apply only to those convicted of treason. These changes
accordingly had the effect of removing any express limitation
on prisoner voting, bringing the law in England, Wales and Northern
Ireland into line with Scottish law. During debate on the 1967
Act the Parliamentary Under-Secretary of State of the Home Office,
Lord Stonham, stated that:
"By Section 2 of the Forfeiture Act 1870,
conviction of felony resulting in imprisonment for over twelve
months disqualifies the offender from holding office under the
Crown, or various other offices; from membership of either House
of Parliament; from voting at elections
and the Government
agree with the Criminal Law Revision committee that these automatic
disqualifications should not be continued."
19. These changes meant that from 1967 to 1969 there
was no statutory restriction on the right of prisoners to vote.
However, administrative restrictions deriving from the rules governing
the preparation of the electoral register and the use of postal
ballots remained in force. As we have noted, under the 1948 Act
electors were entitled to apply for a postal ballot if they were
"no longer resident at their qualifying address", that
qualifying address being their normal home address. Since prisoners
were not authorised to register their place of detention as a
"qualifying address", they could in practice vote only
until a new electoral register was published (a maximum of one
year after the start of their sentence), which would no longer
list them at their previous home address.
The prohibition on prisoner voting
20. A comprehensive statutory prohibition on convicted
prisoners voting was introduced under section 4 of the Representation
of the People Act 1969. This change in the law followed a recommendation
by the Speaker's Conference on Electoral Law, which met between
1965 and 1968. No record of the Conference's deliberations has
been made public, but under the leadership of the then Speaker
of the House of Commons, Horace King, the Conference produced
its interim recommendations in March 1966, ahead of the General
Election scheduled for that month. Among these was the recommendation
that "a convicted prisoner who is in custody should not be
entitled to vote',
a recommendation which would be repeated in the Conference's final
21. The ban contained in the 1969 Act was subsequently
replaced by section 3(1) of the Representation of the People Act
1983, which remains in force today:
"A convicted person during the time that
he is detained in a penal institution in pursuance of his sentence
is legally incapable of voting at any parliamentary or
22. Apart from the remarks Lord Stonham, during the
passage of the Criminal Law Act 1967, there seems to have been
no debate on prisoner voting in Parliament during either the late
1960s or during passage of the 1983 Act. As Lord Sumption has
noted in his judgment in Chester and McGeoch, this may
reflect both "the attention which had already been given
to the issue by the Speaker's Conference, and the complete consensus
on the appropriateness of the voting ban."
In comparison with the historic moves to lower the voting age
at general elections to 18 contained within the Representation
of the People Act 1969, the provisions barring prisoners from
voting may well have been regarded as a minor issue.
Modifying the prohibition on prisoner
23. The first important reconsideration of the prohibition
on prisoner voting took place with the enactment of the Representation
of the People Act 2000, which amended the 1983 Act to allow prisoners
held on remand to vote. Although the prohibition contained in
section 4 of the 1969 Act had been formally limited to convicted
prisoners (as had been the recommendation of the preceding Speaker's
Conference) administrative restrictions around the designation
of a place of residence had in practice prevented all prisoners,
including those held on remand, from voting. The changes introduced
in 2000 were therefore presented to Parliament not as restoration
of a right, but as a means to enable remand prisoners to exercise
an already existing right. In the words of the minister, George
Howarth MP, "remand prisoners
already have the right
to vote. The Bill's provisions will simply make it easier for
them to register and thereby gain access to the vote."
This was achieved by inserting section 7A into the 1983 Act, which
permitted a remand prisoner to be regarded "as resident at
the place at which he is detained" for the purposes of the
24. The removal of restrictions upon remand prisoners
voting in 2000 meant that the United Kingdom's prohibition could
be directly connected to the concept of punishment for a convicted
criminal whose crime was serious enough to warrant imprisonment.
Mr Howarth accordingly affirmed that "absence of rights,
including the right to vote, is part of the punishment of a convicted
has, in essence, remained Government policy ever since.
25. The historical record shows that:
- Under the Forfeiture Act 1870,
which extended to England, Wales and Ireland, prisoners convicted
of a felony and sentenced to more than 12 months were expressly
prohibited from voting. Those serving sentences of 12 months or
less were disenfranchised not by an express prohibition, but by
the simple fact that they could not register to vote or access
the polls while in prison.
- In the years following the Second World War the
express statutory restrictions on prisoner voting were progressively
relaxed. In Scotland, following the abolition of the status of
"outlaw", no express prohibition on voting applied to
any prisoners between 1949 and 1969. Following passage of the
Representation of the People Act 1948 convicted prisoners in England,
Wales and Northern Ireland who were not subject to the partial
prohibition in the Forfeiture Act 1870 were also able to vote
by postal ballot as long as they were still registered at their
- Though there is evidence that prisoners did vote
by post in general elections in the 1950s, prisoners were only
able to exercise their right to vote until such time as the electoral
register for their home district was re-published. This meant
that convicted prisoners lost the right to vote after spending
a maximum of one year in custody.
- Following the abolition of the express restrictions
of the Forfeiture Act 1870 by means of the Criminal Law Act 1967
and the Criminal Law Act (Northern Ireland) 1967, all prisoners
in England, Wales and Northern Ireland, like prisoners in Scotland,
were able to vote by postal ballot, subject to the administrative
restriction outlined above.
- The current prohibition on UK prisoner voting
dates from the enactment of the Representation of the People Act
1969, which gave effect to the recommendations of the Speaker's
Conference on Electoral Law.
- The first explicit consideration of prisoners'
rights in the context of prisoner voting came in 2000, with the
passage of the Representation of the People Act 2000, which established
an administrative mechanism whereby remand prisoners could exercise
their already existing right to vote.
6 In its origins, a felony was, in the words of Sir
William Blackstone, any crime "which occasioned at common
law the forfeiture of lands or goods". Over time most felonies
became punishable by death, but the link to capital punishment
was eroded by successive criminal law reforms in the nineteenth
Re Jones (1835) 111 ER 169 Back
R (on the application of Chester v Secretary of State for Justice)
and McGeoch v The Lord President of the Council (2013) UKSC
63, paragraph 126; hereafter referred to as Chester and McGeoch. Back
Powell v Guest (1864) 144 ER 367 Back
Representation of the People Act 1918, section 41(5) Back
See Philip Norton, The Commons in Perspective (1981), p
Written evidence from Colin Murray Back
A remnant of this system in place to this day sees business owners,
in addition to residents, maintain a vote in the context of City
of London elections (see Part II of the City of London (Various
Powers) Act 1957). Back
Q 106 Back
Draft Bill, p 3 Back
The Times, 24 February 1950 Back
Written evidence from Robert Walter MP Back
See HC Deb., 25 July 1950, cols. 380-381 and HC Deb., 6 December
1951, col. 2544 Back
HL Deb., 1 November 1966, col.508 Back
Letter Dated 7th March 1966 from Mr. Speaker to the Prime Minister
(1966), Cm 2932, p 1 Back
Final Report of the Conference on Electoral Law (1968),
Cm 3550, p 4 Back
Chester and McGeoch, paragraph 136 Back
HC Deb., 15 December 1999, col. 300 Back