Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents


2  The history of prisoner voting in the United Kingdom

From civic death to statutory disenfranchisement

9. In the middle ages those found guilty of felony[6] or treason were subject to "attainder", entailing the loss of all civil rights—in 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.[7]

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."[8] Not only did their incarceration prevent them from attending the polls, but judicial rulings prevented them from registering at their home address while incarcerated.[9] In due course statute also prevented prisoners from designating a prison as their place of residence for the purpose of the electoral register.[10]

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.[11] The vote was regarded not as a universal right, but as the corollary of factors such as property, gender and moral worth.[12] 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.[13] Nineteenth-century justifications for express removal of the vote from some prisoners should be understood against this background.

The partial enfranchisement of prisoners

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."[14] 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]

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."[16] 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 exercised."[17] The early 1950s also saw questions in the House of Commons on the issue.[18]

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]

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',[20] a recommendation which would be repeated in the Conference's final report.[21]

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 local election."

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."[22] 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 voting

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."[23] 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 electoral register.

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 prisoner."[24] This has, in essence, remained Government policy ever since.

Summary

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 home address.
  • 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 century. Back

7   Re Jones (1835) 111 ER 169 Back

8   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

9   Powell v Guest (1864) 144 ER 367 Back

10   Representation of the People Act 1918, section 41(5) Back

11   See Philip Norton, The Commons in Perspective (1981), p 53 Back

12   Written evidence from Colin Murray Back

13   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

14   Q 106 Back

15   Draft Bill, p 3 Back

16   The Times, 24 February 1950 Back

17   Written evidence from Robert Walter MP Back

18   See HC Deb., 25 July 1950, cols. 380-381 and HC Deb., 6 December 1951, col. 2544 Back

19   HL Deb., 1 November 1966, col.508 Back

20   Letter Dated 7th March 1966 from Mr. Speaker to the Prime Minister (1966), Cm 2932, p 1 Back

21   Final Report of the Conference on Electoral Law (1968), Cm 3550, p 4 Back

22   Chester and McGeoch, paragraph 136 Back

23   HC Deb., 15 December 1999, col. 300 Back

24   Ibid Back


 
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Prepared 18 December 2013