Does the disenfranchisement of UK prisoners make them all Political prisoners?

[scottycelt]

I think that it was the supercillious & dismissive tone that made me think of you.

Rather you than me, Simon ...

[Simon]

[Lateralthinking1]

Quite possibly - if that's the case then their prison system is rather more enlightened than ours, & probably has a lower re-offending rate.

But it's not a response I would have expected from you, Lateral; rather what I would expect from Simon or Scotty.

Flosshilde - It was a two part answer. That might not have been clear.

Part one was the voting. I do think individual countries should decide. I agree with this country's position and don't want it here.

Part two was about prisoners studying for qualifications in classrooms, having careers advisers and also all kinds of anti-discriminatory laws on their release. I do want those here rather as I would expect them to be already in Scandinavia.

What I was trying to convey was that other systems are different in many respects. I think we might be forced into what I believe is one of their less wonderful aspects and yet I do not expect us to offer to take on board what I believe is the good.

This reflects what I feel about British policy, as agreed, generally. It is often the complete reverse of what I would choose.

[Flosshilde]

In that case I mis-understood your post. But I don't think that what happens to ex-prisoners should have anything to do with allowing prisoners to vote, and doesn't explain why many countries, including some who I doubt are as enlightened as Scandinavian prison systems might be, have no problem with prisoners voting?

(French Franks comments were interesting; it would seem, on the face of it, that prisoners can at least vote by proxy)

[french frank]

In effect, this is what the ECHR said. They did not say we had to allow prisoners to vote; they said we breached the Convention by imposing a blanket ban on any convicted prisoner voting.

Which is why I don't understand why the govt is making such a fuss.

If you start to think logically about why the commission of a particular crime should justify the loss of the right to vote (rather than a blanket ban), I don't think many crimes would be included. Perhaps only people who have abused the electoral system - and regardless of whether they were sentenced to imprisonment. Prisoners do have civil rights.

Accepting that at present the withdrawal of the right to vote is specifically enshrined in UK law, on prisoners' rights in general:

"The test now applied is that the State can only place limits on prisoners' rights if they are necessary for the prevention of crime or for prison security."

Except, of course, when it doesn't ...

[Lateralthinking1]

In that case I mis-understood your post. But I don't think that what happens to ex-prisoners should have anything to do with allowing prisoners to vote, and doesn't explain why many countries, including some who I doubt are as enlightened as Scandinavian prison systems might be, have no problem with prisoners voting?

(French Franks comments were interesting; it would seem, on the face of it, that prisoners can at least vote by proxy)

Well, I said earlier that I would ideally like prisons to be 24 hour centres of excellence in schooling. It wasn't simply a point about ex-offenders although I think the law is highly discriminatory in regard to those. Of course, there is a resource issue in the case of the former but the returns in terms of employment/tax paid etc would be quantifiable. Less so, in my view, with giving the vote.

And I did read frenchfrank's post. I felt that it could be read in more than one way and not just as interpreted in the subsequent responses to it. I don't think that there is any evidence to suggest that the current system is difficult to administer. I have never heard such an argument being put forward. In terms of the current court process, if some prisoners here are voting then the ECHR hasn't got a leg to stand on when it says that there is a blanket ban. And it can only change British policy if there is a blanket ban.

[french frank]

In terms of the current court process, if some prisoners here are voting then the ECHR hasn't got a leg to stand on when it says that there is a blanket ban. And it can only change British policy if there is a blanket ban.

Not if they are breaking the law in doing so. I wasn't suggesting that it was legal to appoint a proxy - and it may be that whenever anyone is sent to prison, their details are automatically sent to the local authority and the electoral register marked to that effect. In which case the proxy would be denied. But whether the administration of the law is efficiently carried out, it is more complicated - especially if someone is released unexpectedly/early. And there are all sorts of anomalies to consider.

[Flosshilde]

In terms of the current court process, if some prisoners here are voting then the ECHR hasn't got a leg to stand on when it says that there is a blanket ban. And it can only change British policy if there is a blanket ban.

Well, since the government (the last one and the present one) and the opposition say that there is a ban on prisoners voting, then one can only assume that there is one. And the ECHR has presumably examined the evidence & found that there is enough to say that there is one.

[french frank]

Well, since the government (the last one and the present one) and the opposition say that there is a ban on prisoners voting, then one can only assume that there is one. And the ECHR has presumably examined the evidence & found that there is enough to say that there is one.

Yes, the fact that people manage to get round the law doesn't alter the fact that there is a blanket ban.

[Lateralthinking1]

Not if they are breaking the law in doing so. I wasn't suggesting that it was legal to appoint a proxy - and it may be that whenever anyone is sent to prison, their details are automatically sent to the local authority and the electoral register marked to that effect. In which case the proxy would be denied. But whether the administration of the law is efficiently carried out, it is more complicated - especially if someone is released unexpectedly/early. And there are all sorts of anomalies to consider.

I hadn't realised you weren't suggesting it would be lawful for prisoners to appoint a proxy. But a postal vote is currently submitted by individuals before they go into prison, even when by election day they are prisoners. That vote must surely be lawful.

Consequently there is not a blanket ban in law on prisoners voting. At most, there is a blanket ban on them voting on election day.

Even the latter isn't certain. A proxy is nominated before election day. To invalidate that vote when it is cast by the proxy on election day would be to have a system of voting in person that was inconsistent with the postal vote as it applies to prisoners.

[Pabmusic]

...Accepting that at present the withdrawal of the right to vote is specifically enshrined in UK law, on prisoners' rights in general:

"The test now applied is that the State can only place limits on prisoners' rights if they are necessary for the prevention of crime or for prison security."

Except, of course, when it doesn't ...

I agree with the cynicism behind this.

Well, since the government (the last one and the present one) and the opposition say that there is a ban on prisoners voting, then one can only assume that there is one. And the ECHR has presumably examined the evidence & found that there is enough to say that there is one.

Voting by convicted prisoners is not allowed under the Representation of the People Act 1983, s.3. That is the blanket ban that has been ruled unlawful. Here is the Act:

http://www.legislation.gov.uk/ukpga/1983/2

The provision reads:

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election."

That is pretty clearly a blanket ban, since it applies to all convicted prisoners. It is not a 'ban' as such, but a declaration that convicted prisoners are "legally incapable" of voting - in other words, they have no legal ability to cast a vote (even, presumably, if they use proxies).

[french frank]

I hadn't realised you weren't suggesting it would be lawful for prisoners to appoint a proxy. But a postal vote is currently submitted by individuals before they go into prison, even when by election day they are prisoners. That vote must surely be lawful.

Consequently there is not a blanket ban in law on prisoners voting. At most, there is a blanket ban on them voting on election day.

Even the latter isn't certain. A proxy is nominated before election day. To invalidate that vote when it is cast by the proxy on election day would be to have a system of voting in person that was inconsistent with the postal vote as it applies to prisoners.

I think this is splitting hairs

Technically, if the system is 100% efficient postal and proxy should be picked up either at the count (postal) or at the polling station (proxy). If it isn't efficient, then that is my point: a blanket ban is complicated to administer, although you said in #126, "I don't think that there is any evidence to suggest that the current system is difficult to administer."

[Lateralthinking1]

I think this is splitting hairs

Technically, if the system is 100% efficient postal and proxy should be picked up either at the count (postal) or at the polling station (proxy). If it isn't efficient, then that is my point: a blanket ban is complicated to administer, although you said in #126, "I don't think that there is any evidence to suggest that the current system is difficult to administer."

But splitting hairs is the name of the game. They started it.

For example, this entire matter concerns Article 3 of Protocol 1 -

"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."

No reference to free "and fair" elections there. No definition of "the people". Not even the phrase "all the people". And as I said before in different words, rationally the principal intention of that Article is to address what might occur if the Article didn't exist - ie an absence of free elections, lengthy periods between elections, and no right to a secret ballot. These are high level principles. They do not engage in minutiae. If that was the intention, the Article would be pages long. We would be told about the kinds of premises permitted to be used as polling stations and whether or not the rosetted could stand outside collecting polling cards.

In Scoppola v Italy No 3, which is directly relevant, the Court confirmed Hirst No. 2, again holding that general, automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, is incompatible with Article 3 of Protocol No. 1 (right to free elections).

I am saying that, quote, "all serving prisoners" are not disenfranchised. Those who voted using a postal vote when free citizens, and who then subsequently became prisoners before the main day of voting and the counting of votes, are serving prisoners only when the count takes place. If you are to say that their postal vote, submitted weeks earlier, must be checked against a list and discounted on the grounds that they have become prisoners, then you are denying them the right to vote as a free citizen for they were free citizens when they voted. That isn't fair or equal, it cannot be right and I don't believe that it could possibly apply.

So, the counter argument goes, they were free citizens when they voted, they were not prisoners yet, and hence it isn't a case that these people had a right to vote as prisoners. Consequently there is a blanket ban on prisoners. Well yes but mainly no. They have become prisoners at the time of the count. They are then, quote, "serving prisoners". But as serving prisoners they are not disenfranchised because they weren't serving prisoners when they cast their vote. Hence when the Court confirmed Hirst No. 2, again holding that there was "general, automatic and indiscriminate disenfranchisement of all serving prisoners", it was wrong.

Let's put it more simply. Joe Bloggs casts a postal vote. He dies before the count. The dead can't lawfully vote. But the votes of dead people count if they have cast their vote as "alive people" and then died before the count. Yes? All dead people are not disenfranchised in an election because some dead people weren't dead when they voted by post!!!

[Pabmusic]

But splitting hairs is the name of the game. They started it. ...I am saying that all serving prisoners are not disenfranchised. Those who voted using a postal vote when free citizens, and who then subsequently became prisoners before the main day of voting and the counting of votes, are serving prisoners when the count takes place. If you are to say that their postal vote submitted weeks earlier must be checked against a list and discounted on the grounds that they have become prisoners, then you are denying them the right to vote as a free citizen for they were free citizens when they voted. That isn't fair or equal, it cannot be right and I don't believe that it could possibly apply.

So, the counter argument goes, they were free citizens when they voted, they were not prisoners at all, and hence it isn't a case that these people had a right to vote as prisoners. Consequently there is a blanket ban on prisoners. Well yes but mainly no. They have become prisoners at the time of the count. They are serving prisoners. But as serving prisoners they are not disenfranchised because they weren't serving prisoners when they cast their vote. Hence when "the Court confirmed Hirst No. 2, again holding that general, automatic and indiscriminate disenfranchisement of all serving prisoners", it was wrong.

No. The terminology we should use (if we're being picky, which we are) is that of the ban itself, contained in the Representation of the People Act 1983, which I referenced in post 131, and which talks about legal capability to vote. At the time of the election, was a prisoner legally capable of voting? This must refer to the day of the election, when the process of tallying votes begins - I cannot imagine any court accepting a different view - and so any vote submitted under 'advance voting' provisions would not become 'live' until the count. The only question would then be whether the person was a convicted prisoner at the time the advance vote became 'live'.

Although this is an interesting intellectual exercise, it's not a case of whether a ban might be circumvented or difficult to enforce, but whether our domestic legislation purports to impose so wide a ban. There is no doubt that the 1983 Act clearly disenfranchises all convicted prisoners. The ECHR has said that that is too wide a test and that there should be more precise rules.

[Lateralthinking1]

No. The terminology we should use (if we're being picky, which we are) is that of the ban itself, contained in the Representation of the People Act 1983, which I referenced in post 131, and which talks about legal capability to vote. At the time of the election, was a prisoner legally capable of voting? This must refer to the day of the election, when the process of tallying votes begins - I cannot imagine any court accepting a different view - and so any vote submitted under 'advance voting' provisions would not become 'live' until the count. The only question would then be whether the person was a convicted prisoner at the time the advance vote became 'live'.

Oooooh no! I don't think so, Pab. The emphasis there is purely on the voting and not the counting. You are effectively saying that it is a requirement to determine whether everyone who has voted is alive or dead at the count. That doesn't happen.

Plus voting in many elections takes place the day before the count or several days before the count. What of the unfortunate soul who votes in person on the Thursday - election day - and is discounted the following Monday because of a recount?

I suggest strongly that the rights withdrawn from prisoners are the rights to vote and not the rights to have votes counted. In the latter case, it is clear that the measure would be retrospectively applied to free citizens who have become serving prisoners.

Perhaps the wording of the Court might have been better. I have no sympathy. That is what they scrutinize to the nth degree in order to get convictions. People are locked up for years because of a word. A sloppy authority is no authority over democracy.

The Citizens Advice Bureau says "the only prisoners who are entitled to vote are those detained on remand (whether in prison or in hospital) and those convicted but not yet sentenced". That comes at it slightly differently and is also not a blanket ban.