Should Prisoners Have the Right to Vote?

The concept of universal suffrage is defined as every adult citizen capable of voting should have the right to vote and the opportunities to vote. The United Kingdom moved towards this concept by passing legislation through parliament which enfranchised citizens, the first piece of legislation was the Reform Act 1832 which gave only a limited number of male adults the right to vote and disenfranchised a large proportion of the public including the working class.

The most significant change was brought by The Representation of people Act 1918 which granted the right to vote to all adult males over the age of 21 without any property restrictions and women aged 30 and over with some property right restrictions. The Representation of people Act 1928 went on further to give equal rights to women as men by removing property right qualifications and lowering the age limit to 21 same as men. The 1969 Act lowered the age from 21 to 18 for all citizens and this has been the case since then although the Liberal Democrat party campaigned that they would lower the voting age from 18 to 16 at the last general election but there has been no change.

As it can be seen that the U.K has taken a number of positive steps towards universal suffrage.

Representation of People Act 2000 under s3 it dis enfranchises all convicted prisoner right to vote.

The United Kingdom is one of the eight states were prisoners are disenfranchised. This relates back to the 140 year old blanket rule relating back to the Forfeiture act 1870 and idea of civic death. Which is enacted by parliament in to the Representation of People Act 1983 and later amended by the Representation of People Act 2000? This was challenged in court on a number of occasions the recent developments in this area come from

THE QUEEN ON THE APPLICATIONS OF PEARSON & MARTINEZ v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT AND 2 ELECTORAL REGISTRATION OFFICERS HIRST V ATTORNEY GENERAL( 2001)

The action was started in the High court of United Kingdom by three claimants, Mr Pearson and Mr Feal-Martinez and Mr Hirst. The three claimants had applied for their names to be added to the electoral register but were refused by the virtue of section 3 of the Representation of the People Act 1983 which states “A Convicted Person during the time he is detained in a penal institution in pursuance of his sentence… is legally incapable of voting at any parliamentary or local election”. Therefore they were denied the right to vote and issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights. Article 3 of the First Protocol states that “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. This is said to be incompatible with section 3 of the Representation of the People Act 1983.

The court gave dismissed the application on the following grounds

The limitations imposed on the right to vote were legitimate as it was considered part of a prisoners punishment that he loses those rights.

The aim of this was to achieve respect for the law and deterrence for crime and

The court considered that Protocol 1 article 3 of European Convention of Human Rights did not on its face, confer rights on individuals but it had been previously been interpreted as conferring such a rights. The court had accepted that the rights described in Protocol 1 Article 3 included the right to vote, while acknowledging that the right was not absolute and there was scope for limitations.

As to convicted prisoners the view prevailed that a loss of rights was part of a convicted prisoner’s punishment, and that removal from society entailed removal from society’s privileges including the right to vote. The court seems to have taken the view that the right to vote is a privledge not a right.

Hirst v United Kingdom (2005)

The court held by twelve to five votes that there had been a violation of article 3 of Protocol 1.

By twelve to five votes that the respondent state was to pay the applicant a sum in respect of costs, expenses and interests.

Although Art 3 of Protocol 1 was not phrased in terms of a particular right or freedom, it did grantee individual rights and imposed positive obligations on contracting states to provide those rights.

The right to vote was not a privilege, and the presumption was in favour of universal suffrage. However the rights protected by art 3 of Protocol 1 were not absolute, and contracting states had a wide margin of appreciation.

The role of the court was to ensure that any limitations did not impair the very essence of the rights, that they were imposed in pursuit of a legitimate aim, and that they were proportionate.

Preventing Crime by sanctioning the conduct of convicted prisoners and enhancing civic responsibility and respect for the rule of law, were legitimate aims.

Although some categories of prisoners retained the right to vote, the bar affected a wide range of offenders and sentences. Whether or not an offender was in fact deprived of the right to vote depended entirely on whether the judge imposed a custodial sentence or not. Apart from that decision, there was no direct link between the facts of any individual case and the removal of the right to vote.

Whilst the margin of Appreciation was wide, there was no evidence that the United Kingdom legislature had assessed the proportionality of the ban in light of modern penal policy and current human rights standards.

Such a general, automatic and indiscriminate restriction a vitally important convention right fell outside the margin of appreciation.

Secretary of state’s reason given in the proceedings for maintaining current policy.

“By committing offences which by themselves or taken with any aggravating circumstances including the offenders character and previous criminal record require a custodial sentence, such prisoners have forfeited to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from privileges of society, amongst which is the right to vote for one’s representative.

In Europe only eight countries, including the UK, did not give convicted prisoners the right to vote, while twenty did not disenfranchise prisoners and eight imposed a more restricted disenfranchisement

The cases before the European Commission of Human Rights and the ECHR was

KENNEDY LJ CONCLUDED

I return to what was said by the European Court in Paragraph 52 of the Judgement in Mathiew – Mohin v Belguim ofcourse as far as an individual is concerned disenfranchisement does impair the very essence of his right to vote, but that is too simplistic approach, because of Art 3 of the First Protocol is really concerned with the wider question of universal franchise, and the free expression of the opinion if the people in the choice of the legislator. If an individual is to be disfranchised that must be in pursuit of a legitimate aim…

During the passage through parliament of the representation of the people act 2000, which permitted remand prisoners and unconvicted mental patients to vote. Mr Howarth M.P speaking for the government maintained the view that “it should be part of a convicted prisoners punishment that he loses rights and one of them is a right to vote”. The act was accompanied by a statement of comparability under s.19 of the human rights act 1998. Namely a statement that is introducing the measure in parliament the secretary of state considered its provisions to be compatible with the convention.

Section 4 of the Human Rights act 1998 provides

Sub 2 applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a convention right

If the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibly

ECHR CONCLUSION

The chamber found that the exclusion from voting imposed on convicted prisoners in detention was disproportionate. It had regard to the fact that it stripped a large group of people to vote, that is applied automatically irrespective of length of sentence or the gravity of the offence, and that the result were arbitrary and anomalous, depending on the timing of the elections.

As far as the disqualification from voting was to be seen as part of a prisoners punishment , there was no logical justification for the disqualification to continue in the case of the present applicant, who had completed that part of his sentence relating to punishment.

The majority of the Grand Chamber in Hirst found that Article 3 of Protocol No. 1 had been violated. The Court also noted that, although the right to vote is a right and not a privilege and Article 3 of Protocol No. 1 is not absolute, there is room for implied limitations, and states must be given a margin of appreciation.24

The chamber held that the means employed were disproportionate

The right to vote is a right not a privilege

Approaches taken in other Jurisdictions

Consequences of failing to implement the ruling

The consequences for failing to implement this ruling can result in United Kingdom having to pay out compensation to prisoners which will result in tens and thousands pounds of taxpayer’s money being wasted plus litigation fees on top. Also the United Kingdom will be in breach of European Convention on Human Rights and this will be affecting their relationship with the European Court of Human rights in Strasbourg and the Council of Europe. On the other hand the consequences of allowing prisoners the right to vote as it would be sensible decision as it will not alienate them from the society which they will enter once they have completed their sentence. It also be seen that there is no direct connection between restricting the right to vote and offending. It cannot be seen as a punishment for prisoners as in the present case the court ruled that the applicant had completed the … there was no logic in denying him the right to vote. But it will be going against the 140 year old blanket rule which was placed in 1870 and at the moment the majority of the public are not willing to allow prisoners to vote either.

Whether its parliaments role to punish?

The question one has to ask is whether its the parliaments role to punish? Or do they simply just apply the law and its the legistalorot who lays down punishment through parlaiament.

Conclusion

Also from my point of view prisoners should be given the right to vote but it should have some measures placed on this. As I believe right to vote is a right not a privilege and people are sent to prison to lose their liberty not their identity. Giving prisoner the right to vote can add to their process of rehabilitation as they will not be alienated from the society which they tend to go back in to once out of prison.

I cannot see a link between deterrence of crime an disenfranchisement of prisoners, as pointed out by the prisoner reform service given prisoners the right to vote can a have a number of advantages also it can save thousands of pounds of tax payers money which the government would have to pay out if they choose not to implement the ruling. As Susan argues that

It is ironic that the Government has declared a commitment to promoting universal suffrage,58 is concerned about underregistration among the electorate, and has introduced a new bill this session,59 which, is designed inter alia to improve electoral registration, but at the same time it continues to exclude convicted prisoners.