Allowing prisoners to vote has been a contentious topic in British politics for many years and has been the subject of legal action by some of those who have held their right to vote withheld. So, what are the rules surrounding prisoners voting and what are the arguments for and against allowing prisoners to vote in the UK?
What are the current rules of prisoners voting in the UK?
Currently the law in England, Wales and Northern Ireland dictates that prisoners are prohibited from voting in either General, Regional or Local elections. This applies regardless of the length of their sentence or the crime that they have been convicted for. The law that forbids prisoners from voting is the Representation of the People Act 1983, however, the prohibition on some prisoners voting goes back to the Forfeiture Act of 1870.
Importantly, it is the fact of being detained that prevents a person from voting. If a person were on license at the time, their right to vote would not be infringed. Notably, this law does not prohibit a prisoner on remand from voting. However, due to their incarceration, they would only be able to vote via a postal ballot or a proxy vote. The reason that a prisoner on remand can vote is the 1983 Act refers to a ‘convicted person’ and someone on remand has not been convicted and are instead awaiting trial.
The law in Scotland and Northern Ireland is slightly different. The franchise is devolved in Scotland, Wales and Northern Ireland for regional and local elections and a law passed by the Scottish Parliament means that any prisoner serving a sentence of less than 12 months can vote in a regional or local election.
What legal challenges have been made to prisoners not being able to vote?
There have been a number of legal challenges to the fact that prisoners cannot vote in the UK:
Hirst v United Kingdom (2005)
In 2001 John Hirst, a prisoner then serving a life sentence for manslaughter, bought a case in front of the High Court in the UK arguing that his rights under the European Convention of Human Rights had been infringed. Precisely, he argued that it was a violation of Protocol 1, Article 3 of the ECHR:
“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 the legislature.”
Hirst’s case was rejected in the High Court in England. However, Hirst appealed this decision to the European Court of Human Rights in Strasbourg. The ECtHR ruled differently from the High Court in the case and ruled in Hirst’s favour by a majority of 12-15. The court said in its decision that although it was not dictating that prisoners should always be able to vote, it believed a careful and ‘fair balance’ had to be struck and that the British Government had failed to do this by relying on a blanket ban:
“..It should be for the legislature to decide whether any restriction on the right to vote should be tailored to particular offences, or offences of a particular gravity or whether, for instance, the sentencing court should be left with an overriding discretion to deprive a convicted person of his right to vote. The Court would observe that there is no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners. It cannot accept however that an absolute bar on voting by any serving prisoner in any circumstances falls within an acceptable margin of appreciation. The applicant in the present case lost his right to vote as the result of the imposition of an automatic and blanket restriction on convicted prisoners’ franchise and may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the vote even if a more limited restriction on the right to prisoners to vote had been imposed, which was such as to comply with the requirements of Article 3 of Protocol No. 1.”From the Judgement in Hirst v United Kingdom (No.2) Judgement
As a signatory of the ECHR, the British Government agrees to implement their decisions. and this put the British Parliament under a legal obligation to change the law.
Greens and MT v UK (2011)
In Greens and MT v UK a second set of prisoners took their case to the ECtHR. Following the result of Hirst v UK, the two prisoners had posted voter registration forms and given their address as HMP Prison Peterhead. Their registration was rejected on the grounds that they were serving a period in custody. The court again reminded the British Government of its responsibility to implement the changes called for in Hirst and gave a six-month timeframe to do so.
Chester v UK (2013)
This case was significant in that it went to the UK Supreme Court, rather than the European Court of Human Rights. Peter Chester was serving a life sentence for murder and had not yet been deemed as safe for release by the Parole Board. Like Hirst, and Greens and MT, he argued that his rights under Protocol 1, Article 3, had been infringed. The Supreme Court recognised its duty to consider the rulings under the ECtHR, but also was clear that it was not bound by them. In its case the Supreme Court unanimously dismissed Chester’s appeal. They said that there was no need for a further declaration of incompatibility. However, they did not question the decision in Hirst that a blanket ban was incompatible with the ECHR.
Despite these cases, the law in Britain on Prisoners Voting remains unamended as Parliament has not changed the law.
How has Parliament dealt with the issue of Prisoner’s Voting?
The Hirst v UK decision forced Parliament to reconsider the issue of Prisoner’s Voting. In December 2010 the Coalition Government announced its plans that prisoners serving a custodial sentence of less than would have the right to vote in UK elections, unless otherwise proscribed by the judge. Subsequently, a white paper was published. However, before the bill could be introduced into Parliament a backbench business motion was held on the the motion that the house ‘supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand’. The house divided by 234-22 in favour of the motion, clearly indicating support for prisoner voting was low and, notably, with cross-party support:
On the 24th October 2012 David Cameron was asked about prisoner’s voting at Prime Ministers Questions and emphatically stated that he was against it and repeated this statement a year later:
Subsequently, no further legislative progress was made by the government.
There have also been Private Members Bills relating to the issue. These include bills by Lords Ramsbotham and Lord Paddick, neither of which made it beyond the First Reading.
How do other states handle this matter?
It is a minority of states that allow all prisoners to vote. Some of those that do include Denmark, Finland, Spain and Ireland. Other states have a graduated system that disenfranchises prisoners based on factors like the particular crime committed or length of sentence. For example, in France, being banned from voting is seen as an additional punishment that may be added to a sentence.
What are the arguments in favour of allowing prisoners to vote?
Some of the arguments in favour of allowing prisoners the vote may include:
- It upholds democratic principles – The right to vote is a key principle in any parliamentary democracy. It is core to the system that those governed are able to give consent to that governance. Britain is built on a system of universal suffrage and denying prisoners the vote undermines that system. In addition, those in prison are most likely to come from minority groups, including those on low-income and ethnic minorities, meaning withholding their vote may be discriminatory.
- It supports rehabilitation – The justice system is built on three things: protecting the public, avenging victims and rehabilitating offenders. Evidence suggests that offenders are better at rehabilitating when they have a stake in society. Encouraging civic responsibility whilst incarcerated is likely to translate into positive behaviour upon release. Making prisoners feel like they don’t matter whilst incarcerated is simply likely to marginalise them even more.
- It would be compliant with international law – The ECHR has clearly indicated on multiple occasions that a blanket ban on prisoners voting is a violation of Article 3, Protocol 1, of the ECHR. Making changes that are simply more proportionate, even if not allowing all prisoners to vote, would bring Britain in line with human rights rulings.
What are the arguments against allowing prisoners to vote?
Some of the arguments against allowing prisoners the vote may include:
- Rights are removed as a punishment – The very fact that someone is in prison indicates that they should lose some of their civil rights. There are many other privileges that prisoners have to sacrifice when they go to prison, voting may be seen that is just another. The right to vote should only belong to law-abiding citizens. Many people believe that allowing prisoners to vote would send the wrong message.
- Public Opinion is opposed to it – Public opinion is clearly opposed to giving prisoners the vote. A YouGov poll in 2012 found that just 8% of the public believed all prisoners should be able to vote and 63% said that all prisoners should not be able to vote. Most say that they would be unhappy with a prisoner having the same say as law-abiding citizens as to how the country is run.
- It is impractical to allow it to happen – There would be practical difficulties in allowing prisoners to vote. Prisoners would have to vote via proxy or via post and this could potentially be open to abuse in prison. In addition, prisons often have very large populations. For example, HMP Parc has over 1,600 inmates, easily enough to sway a tight election. This could potentially force politicians to campaign to prisoners.
The issue of prisoners voting has been made even more complex by court rulings that have indicated that the position of the British Government is wrong. However, it remains an extremely complex issue that causes much political debate.
Representation of the People’s Act (1983) – A law which confirmed that any prisoner serving a custodial sentence could not vote.
European Convention of Human Rights – A European Treaty that Britain signed in 1950 which guarantees certain human rights.
European Court of Human Rights – The court of the ECHR that is based in Strasbourg and to which European citizens can challenge their own government about their rights.
Hirst v United Kingdom – An ECtHR from 2005 in which John Hirst challenged the UK Government over their blanket prohibition of the vote for prisoners.