PUBLICATION DATE: 20/02/2019 Extending the Franchise: Prisoner Voting Mae’r ddogfen yma hefyd ar gael yn Gymraeg. This document is also available in Welsh. © Crown Copyright Digital ISBN 978-1-78964-638-2 Extending the Franchise: Prisoner Voting Ciara Merrick University of Bristol, on ESRC sponsored internship to Welsh Government Views expressed in this report are those of the author and not necessarily those of the Welsh Government. Table of contents List of tables ........................................................................................................................... 2 Glossary ................................................................................................................................. 3 1. Introduction ............................................................................................................... 4 2. Methodology ............................................................................................................ 10 3. Where We Stand Today .......................................................................................... 18 4. Learning from Other Countries ................................................................................ 44 5. The Justice System in England and Wales ............................................................. 74 6. Section Four: Delving Further into the Challenges ................................................ 122 7. Conclusions ........................................................................................................... 150 Appendix One .................................................................................................................... 159 Reference section .............................................................................................................. 162 1 List of tables Table 1: Prisoners’ Voting Right in Council of Europe Countries. ........................................ 47 Table 2: Length of sentence disqualifying prisoners from voting by Australian jurisdiction. 62 Table 3: Enrolment statistics for prisoner in Victoria as at 3rd June 2010. ........................... 72 Table 4: Young offender institutes holding young males in England and Wales. ............... 117 Table 5: Young offender institutes holding young females in England. .............................. 118 2 Glossary Acronym/ Keyword Definition AEC Australian Electoral Commission “the Convention” The European Convention of Human Rights ECHR European Community of Human Rights EROs Electoral registration officers GPV General postal voter HMP Her Majesty’s Prison HMPPS Her Majesty’s Prison and Probation Service IPP Imprisoned for public protection LHB Local Health Board NOMS National Offender Management Service PHPBs Prison Health Partnership Boards ROs Returning officers SCHs Secure Children’s Homes STCs Secure Training Centres UNCRC United Nations Convention on the Rights of the Child VEC Victorian Electoral Commission YOI Young Offender Institutions YJB Youth Justice Board ARP Automatic release date CED Custody end date CRD Conditional release date LED Licence expiry date NPD Non-parole date PED Parole eligibility date SED Sentence expiry date SOPC Special custodial sentence for offenders of particular concern TUSED Top-up supervision end date 3 1. Introduction Background 1.1 Following a referendum in 1997, Wales acquired a representative Assembly and an executive (the “Welsh Government”), both with devolved responsibility under the Government of Wales Act 1998. Since 1998 the Welsh Government has gradually gained more powers, with the Wales Act 2017 considerably extending the National Assembly’s and Welsh Government’s devolved functions. The Wales Act 2017 brought forth a new set of powers for the Assembly and the Welsh Government, including the power to make provisions regarding elections. Thus, for the first time responsibility of Assembly and local elections sit with Wales, rather than Westminster. This responsibility includes the administration of elections to the Assembly and local government, as well as legislative competence for registering electors who are eligible to vote and the franchise applying to these elections. Responsibilities for elections to the Westminster Parliament remain with the UK Government. 1.2 Currently, the Welsh Government is in the process of drafting a Local Government Bill for introduction to the National Assembly in the autumn of 2018. Primarily this Bill sets out a range of proposals seeking to improve the operation of local government in Wales, by delivering services in a collaborative fashion and through improvements to governance and public accountability. In addition to changes in local government, any legislation relating to electoral reform is also due to be included in this bill. 1.3 There are a range of electoral proposals that have been put forward for potential inclusion in the Local Government Bill. Primarily, the electoral reform proposal addresses the way in which people become eligible to vote, how people register to vote and how electors cast their vote, as well as reviewing how elections are held and the overall functioning of democracy in Wales. Key within the proposal is the building of the local government franchise, whereby voting rights are to be extended to sixteen and seventeen year olds, to all foreign nationals legally resident in Wales and to prisoners who meet the determined terms of eligibility – it is the enfranchising of the last category of persons that this report focuses upon. 4 The Proposal 1.4 In July 2017 the Welsh Government published a consultation paper Electoral Reform in Local Government in Wales, enquiring into the various elements of the electoral reform proposal that are currently being explored. In this paper the proposal to enfranchise Welsh prisoners was broached. However, the consultation paper acknowledged the inherent complexity of enfranchising prisoners and, thus, stated whilst legal consideration continued to be explored no firm proposals were being advanced. Then in March 2018, as part of the Assembly Reform Bill, the Cabinet Secretary for Local Government and Public Services, Alun Davies, indicated his firm intention to enfranchise Welsh prisoners for local government elections in Wales and, what is more, sketched the terms of his proposal. Currently, the Welsh Government is proposing to enable prisoners from Wales to vote provided that their due release date falls within the term of office of the council being elected. Prisoners who are serving an indeterminate sentence, which has no set release date, will not be eligible to vote, even if their tariff period falls within the terms of office of the council being elected. The proposal sets forth provisions whereby prisoners who meet the criteria proposed would be eligible to register to vote at a connected address, which would normally be a prisoner’s home address, their last known address or another address in Wales to which they have a connection. It is integral that eligible prisoners can register on the basis of a connected address to ensure there is a mechanism in place whereby prisoners from Wales, who are imprisoned outside of Wales, retain their voting rights. This is particularly pertinent considering no prisons in Wales have the capacity to accommodate female prisoners and, thus, if female prisoners from Wales are to exercise their voting right they will need to be eligible to register at a connected address. The connected address, however, would not be the prison address and, so, prisoners in Wales will not be eligible to register to vote in the local authority in which the prisoner is accommodated. The proposal sets forth a vision whereby eligible prisoners, who have successfully registered, will vote via post or an appointed proxy, with there being no provisions in place for prisoners to vote in person at a polling station, via temporary release for the sole purpose of voting or by a mobile polling station in the prison. 5 The Project Brief 1.5 Guided by the proposal, this report aims to provide a better understanding of how prisoners from Wales could be practically enabled to vote, in order to develop policy around the proposal. This will require a broad exploration of the history of prisoner voting and sentencing policy and practice for both adult and youth offenders. In addition, it will be necessary to look to other countries that have enfranchised prisoners and explore the practical provisions they have put in place. With this in mind, the principle objectives of this report are: to map out the arguments for and against prisoner voting, drawing upon international debates and court decisions to examine the extent to which prisoner voting takes place internationally, the difficulties confronted in introducing it and the extent to which the entitlement is taken up to provide an in-depth reading of custodial sentencing policy and practice in England and Wales, for both adult offenders and youth offenders to consider the main technical obstacles of introducing prisoner voting, which primarily include: addressing the question of how a prisoner’s due release date is determined; whether the same principles regarding the enfranchisement of prisoner voting can be justifiably applied to young offenders; and the question posed by prisoners as “ordinarily resident” in terms of service provision. 1.6 Meeting the project brief does not require carrying out any first hand research, rather the aim of the report is to provide the necessary background information