The importance of the right to vote revealed through historical struggle when nations gone through exclusion from enjoyment of this right based on color, property possession, sex, belief, social status and religion.
The institute of the right to vote gained through development of the democracy.
As 16th US President Abraham Lincoln said that democracy “is the government of the people, by the people, for the people”.
Democracy in the modern world evolved in Britain and France and then spread to other nations. The main reason for the development of democracy was dissatisfaction with the corruption, incompetence, abuse of power, and lack of accountability of the existing institutions, which were often an absolute monarchy whose legitimacy was based on the doctrine of the divine right of kings*1.
Women were allowed to vote in France in 1945 and in Switzerland only in 1971, comparing with the UK – women gained that right in 1918. However, in our days, while prisoners can freely vote in Switzerland and with certain limitations in France, the UK has a blanket ban on this right, or better to say a privilege.
Applying to the legal background, we would see that according to Article 21 of the Universal Declaration of Human Rights of 1948:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) codifies these rights, requiring that:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
According to paragraph 14 of the General Comment to Article 25 of ICCPR: “In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote”.*2
Article 3 to Protocol 1 of the Convention for the protection of Human Rights and Fundamental Freedoms (“Convention”) 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.
The United Kingdom legislation regarding prisoners’ right to vote
Under 1870 Forfeiture Act the prisoners were denied the vote and the ban was maintained after the 1983 Representation of the Peoples Act.
The Representation of the Peoples Act 1983 provides: “A convicted prisoner 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 government election.”
The law which deprived prisoners to vote for 142 years was disturbed by the European Court of Human Rights (“European Court”).
The European Court’s position concerning the prisoners’ right to vote
The first and the most debated judgment was rendered in 2005 by the European Court Hirst v the United Kingdom (no2)*3, c oncerned blanket ban on convicted prisoners’ right to vote.
In order to analyse the European Court’s position, I would like to mention the main arguments of the Court stated in it’s judgment.
The reasoning of the Court provided in the judgment Hirst v. UK (no 2) was, in particular, based on legal practice of the country that is not a Member State of the Council of Europe – Canada. In this context: “The Court has found that the Canadian Supreme Court judgment in Sauve No. 2 provides a detailed, and helpful, examination of the purposes pursued by prisoner disenfranchisement.”*4
Although, the Court confirmed the difference in text and structure of the Canadian Charter, it considered substance of the reasoning in Sauve applicable in the present case.
The decision on the case Sauve v. the Attorney General of Canada (No. 2) taken by the Supreme Court of Canada in 2002 found violation of Articles 1, 3 of the Canadian Charter of Rights and Freedoms and held that the section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional.*5
The European Court accepted that UK government has a wide margin of appreciation in this area and that it is a national legislature who should determine whether restrictions on prisoners’ right to vote can still be justified. Nonetheless, the European Court did not accept that an absolute restriction on the right to vote falls within an acceptable margin of appreciation.
Thus, the Court stated that “in the present case the applicant 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”*6.
Following Hirst , the European Court rendered judgment Frodl v Austria*7. It concerned a prisoner serving a life sentence for murder in Austria. He had been disenfranchised under the National Assembly Election Act, according to which a prisoner who serves a term of imprisonment for more than one year was not allowed to vote.
Although, the Court stated that the Austrian provisions on disenfranchisement were more narrowly defined than in Hirst case, nevertheless, it found that the decision on disenfranchisement should have been taken by a judge and that, in this particular case, there had not been a link between the offence committed and the issues relating to elections and democratic institutions*8.
In 2010 the European Court rendered the pilot judgment on the case Greens and M.T. v. the United Kingdom*9. The case concerned the blanket ban on voting in national and European elections for convicted prisoners in detention in the United Kingdom. The Grand Chamber of the Court again found a violation of Article 3 to Protocol due to the fact that the legislation which led to the finding of a violation of Article 3 of Protocol No. 1 by the Court’s Grand Chamber in the case of Hirst v. the United Kingdom No. 2 , remained unchanged. The pilot judgment procedure will be elaborated further.
As we can see, the European Court dictated the law on such a sensitive national legislative issue that leads to a very difficult decision that has to be taken by the UK government.
Lord Hoffmann – one of the greatest legal minds said: “The devil is in the detail, and the detailed record of the ECHR shows an expansionist tendency to micromanage national legal systems, so that the concept of human rights is now a byword for «foolish decisions by courts and administrators”*10.
Moreover, he accurately mentioned that “ in practice, the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandize its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe”*11.
It is worth making an overview of the position of the UK government concerning the prisoner’s right to vote.
Position of the United Kingdom government
After the judgment Hirst the previous government took a series of consultations on voting rights, but nothing was actually decided after the ruling of the Court.
The position of the present government, especially of the Prime Minister David Cameron was as he said: “the idea of prisoners voting makes me “physically ill’”*12, he also stated that «rights are privileges and must be earned»*13.
Dominic Grieve, the Attorney General, has previously said it would be “ludicrous” to give inmates the right to vote*14. Moreover, he said that “civic rights go with civic responsibility, but these rights have been violated by those, who have committed offences”*15.
There were hours and hours of debates in the Parliament and the most frequent arguments against prisoners voting were that “ Those who are deemed to be prisoners have been found to have broken the civic contract that operates between members of society and the society in which they live”*16.
The Liberal Democrats are in favor of changing the law in order for some prisoners to have the vote.
David Cameron was forced and couldn’t do anything to halt the European Court judgment demanding the change of the law, not because of the Liberal Democrats, but due to the fact that UK came under increasing pressure from the Committee of Ministers of the Council of Europe. Besides the present government confronted the risk that tap would never stop running due to substantial compensation claims for tens of millions of pounds.
The authorities conducted a two-stage consultation process, with a view to introducing before Parliament the necessary legislative reform on this tricky matter.
Initially authorities considered the possibility that prisoners serving up to 4 years would get the vote. Later the discussions shifted to give the right to vote to those who are sentenced to serve a year or less. Until now the law on this issue has not been adopted.
Not only the government, but society, scholars, human rights defenders, prisoners are divided in two groups – one group heavy criticizing and arguing that people who committed a crime should lose their most basic right of a citizen, and others, who consider that rights as one of the fundamental rights in a democratic society.
Contrary position
Peter Bottomley, the Conservative MP and former minister, said: “Ex-offenders and ex-prisoners should be active responsible citizens. Voting in prison can be a useful first step to engaging in society”*17.
Sir David Ramsbotham, the former HM Inspector of Prisons, argued that all citizens of the United Kingdom have the vote by right — not moral authority and one of the aims of imprisonment is to help prisoners to live useful and law-abiding lives. He concluded that removing a citizen’s right is an additional punishment to the deprivation of liberty.*18
The Prison Governors Association has warned that the ban hampers inmates’ rehabilitation*19.
The Bishop to HM Prisons, the Right Reverend Dr Peter Selby, has also spoken in support of prisoners’ right to vote. He said not allowing them to vote states society’s belief that once convicted you are a non-person, one who should have no say in how our society is to develop, whose opinion is to count for nothing*20.
“The UK ban on prisoners voting is a relic from the 19th century which is neither a deterrent nor an effective punishment,» said Juliet Lyon, director of the Prison Reform Trust. She also noted that the right to vote poses no risk to public safety and giving prisoners the vote would encourage them to take the responsibilities that come with citizenship»*21.
Jeff King, the Fellow at Balliol College in Oxford mentioned that the right to vote is a fundamental human right. It is not a privilege, like a driving license or access to the gym on weeknights*22.
To function properly, democracies require maturity among the people who vote. It’s not by incident many national laws of different countries prohibit voting under voting age, which generally is 18 years.
I absolutely agree with former prisoner — Bob Turney, who served 18 years in jail, who said to BBC News Magazine «As for the idea that voting will help rehabilitate criminals — do me a favor. They’ve got it the wrong way round. It’s not voting that makes you a good citizen. It’s becoming a good citizen that makes you want to vote”*23.
When we confront such a difficult and disputable issue it is worth to take a look at the laws of other countries.
Most European countries, such as Denmark, Sweden and Switzerland, have no ban on prisoners’ right to vote. In Italy, Malta and Poland, the ban is imposed on those who committed serious crimes.
In 2006 the Republic of Ireland passed legislation enabling all prisoners to vote.
Other than the UK, the only other European countries with an outright ban on prisoners voting are Russia, Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg and Romania.”*24
Thus, as we can see, the UK stands together with the Eastern European countries on this issue, whose level development of democratic processes is not that progressive in comparison with the United Kingdom.
One could think that UK is not willing to achieve progressive level of democracy, on one hand.
As 26th US President Theodore Roosevelt once said “A great democracy must be progressive or it will soon cease to be a great democracy”.
On the other hand, it is not appropriate for the UK to change it’s oldest legal traditions, taking into account that it always stood aside and more or less isolated from certain decisions taken within the EU (eg. the UK opt-outs from Sсhengen Agreement, Eurozone and the Charter of Fundamental Rights of the European Union).
In this context, I fully support the argument of Lord Hoffmann: “ We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change. I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such”.
We should not forget that during the Medieval period in 1215 the world has seen the Magna Carta, the monument of history. One can not deny its’ great role in developing democracy (the royal government power does not stand over the law, it should conform with the law). The main ideas of the Charter – free church, feudal hold the land from the King and the reform of the judicial system*25. This document had the most significant influence on the following epochs and historical processes that led to my mind to foundation of the rule of constitutional law and human rights law today.
In my view, implementation of laws on national level is prerogative that falls within the competence of each sovereign state, and in fact a wide margin of appreciation should be given to the State.
The cornerstone of the UK’s democracy is the sovereignty of the Parliament and the threshold should depend on a Westminster enactment.
It also seems to be quite unfair that in some countries of the Council of Europe, such as Russia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg there is a ban for the prisoners’ right to vote, whereas in other Member States countries prisoners are allowed to vote. The Court only mentioned that each country has to decide the limits, however, the Court did not identify clearly what limits it considers to be in conformance with democratic values and legitimate aims.
However, the threshold, already established by the Court is too high, as the Court found violation of the right of a prisoner who was sentenced for manslaughter. In case the Court accepts such a high threshold, would it then lead to future discrimination of applicants, committed manslaughter, whose applications would be dismissed in accordance with new law?
As well as Article 24 of European Prison Rules, which provides: Prison authorities shall ensure that prisoners are able to participate in elections, referenda and in other aspects of public life, in so far as their right to do so is not restricted by national law, does not indicate to what extent European law would allow “national law” to restrict the right of sentenced prisoners to vote*26.
There is no doubt that, until a legal challenge is brought in above mentioned countries, the Court will not be able to force a change in their domestic legislation, which to my mind puts the member states in unequal position towards each other.
Execution of the judgments at the Committee of Ministers of the Council of Europe (pilot judgment procedure)
All the judgment rendered by the European Court comes under supervision of the Committee of Ministers of the Council of Europe. The process of execution of the judgments consists in implementation of individual and general measures.
According to Article 46 of the Convention t he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
Under Rule 61.1 of the Rules of the Court the latter may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications.
When the Court receives applications that share a root cause, it can use the pilot procedure.
The main point of the pilot procedure is an option of adjourning, or “freezing,” similar cases for a period of time on the condition that the Government acts promptly to adopt the national measures required to satisfy the judgment*27.
The pilot judgment procedure is rather unpleasant for the government. Recently, the Russian Federation had to face two pilot judgments — first in 2009 Burdov v Russia (2)*28, concerning prolonged non-enforcement of court decisions and lack of domestic remedy , and the second in 2012 Ananyev and Others v. Russia*29 regarding structural problem of inadequate conditions of detention.
The UK also joined the list of countries with pilot judgments in 2010 (case Greens and M.T. v. the United Kingdom), concerning the s tructural problem in the UK legislation due to the blanket ban on voting for convicted prisoners in detention.
The Court received 2,500 applications of similar nature and gave the UK government six months from the date when Greens and M.T. became final to introduce legislative proposals in order to bring the law in accordance with the Convention.
In December 2009, the Committee of Ministers of the Council of Europe adopted Interim Resolution (2009) 160, in which it expressed serious concern at the substantial delay in implementing the judgment which has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the ECHR*30. The Committee of Ministers urged, therefore, the United Kingdom to rapidly adopt the measures necessary to implement the Court judgment*31.
On December 2, 2010 Committee of Ministers adopted a decision whereby it recalled the conclusions of the judgment and it’s Interim Resolution of 2009, noting that despite this, the United Kingdom general election was held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place*32.
Due to the fact that the judgment Greens and M.T. became final on 11 April 2011, the Committee of Ministers of the Council of Europe set a deadline for the UK authorities to submit an Action plan until 11 October 2011, however, the deadline was extended to six months after judgment delivery in the case of Scoppola (no. 3) v. Italy*33, which concerns the ban imposed on the applicant as a result of his life sentence for murder which lead to a permanent forfeiture of his right to vote.
Due to the fact that the final judgment on case Scoppola was carried out on 22 May 2012, the United Kingdom government has to present their amendments until the end of year 2012.
Ed Bates Senior Lecturer in Law at the University of Southampton raised a question: “How this matter will be resolved will be a strong test of the UK’s overall commitment to the Convention — or could it result in a blow to the authority of the Court?”*34
Certainly, when Member States signed/ratified Article 3 of the Protocol no 1 to the Convention they were not aware that many years later that Article would be interpreted by the Court for the prisoners’ benefit.
When the United Kingdom signed the Convention it accepted the jurisdiction of the Court as an integral part of the treaty. Moreover, Convention rights and freedoms were incorporated into the UK law by the Human Rights Act 1998.
In case the government refused to pay the compensation, that would be unusual and the Council of Europe would have to consider suspending the United Kingdom. A suspension would place the United Kingdom alongside Belarus as the only major European state outside the Council*35.
Conclusion
The right to vote is an important right that gives people faith in their future through their choice and opinion, but it has never been an absolute right, there have always been derogations to this right at different time and for different groups of people.
It is hard to accept that prisoners who committed grave offence should be allowed to vote. However, the Europe, as often described in the literature, gave one of the greatest gifts to the world – democracy, through struggle for equal rights of men and women, homosexuals and other minorities, for freedom of expression, now achieved a highest point of democratic development — the right to vote for prisoners.
In some Eastern European countries, where the level of democracy is low, while the level of corruption is high, for example in Russia, where only recently for many years people could riot for the fair elections, where homosexuals were not allowed to organize riots (Alekseyev v. Russia*36), where citizens, that pay taxes and obey legal order are deprived of many fundamental rights, where prisoners have conditions of detention below average European level, the right to vote for prisoners is not even an issue and priority in the State’s agenda.
A famous Russian writer and prisoner at a time Fyodor Dostoyevsky once said: “You can judge a society by the way it treats it’s prisoners”. However, unlike current UK prisons’ conditions, Dostoyevsky did not have adequate conditions of detention, right to communicate, phone calls, family visits, medical treatment, etc.
To my mind, the right to vote for prisoners is either a step towards higher democratic standards or democratic utopia.
Sir Winston Churchill said “Democracy is the worst form of government, except all the others that have been tried.”
How can we justify this right? If we compare it with the exclusion of colored people or women from this right in our days, we can certainly argue that it is unfair, however, decades ago no one could think of granting them this right.
The European Court has had occasion in many cases to underline the importance, in the interpretation and application of Convention rights, of “democratic values” (Soering v. the United Kingdom*37).
Why should the core democratic value, namely political freedom be given to individuals that have no moral values and respect to laws and other people’s rights? It seems more logical that individuals who disrespected law would go through the process of rehabilitation and correction while being in detention, where they will hopefully recognize their wrongdoings, and after returning into society will have a right of political participation.
© Zoya KOKORINA, postgraduate student
The University of Nottingham Law School 2012
*1 New World Encyclopedia http://www.newworldencyclopedia.org/entry/Democracy
*2 General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25),12.07.1996. CCPR/C/21/Rev.1/Add.7, General Comment No. 25. (General Comments), http://www.unhchr.ch/tbs/doc.nsf/0/d0b7f023e8d6d9898025651e004bc0eb?Opendocument
*3Hirst v the United Kingdom (2), (Application no. 74025/01), 6 October 2005, ECHR documents collection http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*7 Frodl v Austria, (Application no. 20201/04), 8 April 2010, ECHR documents collection HUDOC, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*9 Greens and MT v the United Kingdom, (Application nos. 60041/08 & 60054/08), 23 November 2010, ECHR documents collection HUDOC, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*10 The INDEPENDENT, Ben Emmerson: The European Court of Human Rights enhances our democracy, Lord Hoffmann is one of the country’s greatest legal minds. But his quarrel with Strasbourg goes back to the Yorkshire Ripper, 08 February 2011, http://www.independent.co.uk/opinion/commentators/ben-emmerson-the-european-court-of-human-rights-enhances-our-democracy-2207503.html
*11 ECHR Blog, “British Law Lord Heavily Criticizes European Court”, 6 April 2009, http://echrblog.blogspot.co.uk/2009/04/british-law-lord-heavily-criticizes.html
*12 BBC News, «Murdered child’s mother hits out at prisoners’ vote”, 3 November 2010, http://www.bbc.co.uk/news/uk-politics-11687105
*13 United News,” UK prisoners right to vote”, 10 February 2011, http://www.uneditednews.co.uk/News/uk-prisoners-right-to-vote
*14 The Telegraph by Andrew Porter, Political Editor, “Prisoners to get the vote for the first time” 01 November 2010, http://www.telegraph.co.uk/news/uknews/law-and-order/8103580/Prisoners-to-get-the-vote-for-the-first-time.html
*15 Mail Online, “Rapists, paedophiles and burglars get the vote as Government prepares to lift prisoners’ election ban”, by James Slack, 8 February 2010, http://www.dailymail.co.uk/news/article-1168562/Rapists-paedophiles-burglars-vote-Government-prepares-lift-prisoners-election-ban.html
*16 House of Commons Official Report, Parliamentary Debates, Volume 523 no. 116, 10 February 2011, pp495, 508, 563
*17 BBC News, “Call for prisoners’ right to vote”, 2 March, 2004, http://news.bbc.co.uk/1/hi/uk/3523231.stm
*20 BBC News, “UK prisoners’ right to vote”, 20 January 2011, http://www.bbc.co.uk/news/uk-11674014
*21 The Guardian, “Give prisoners right to vote, says UN Duncan Campbell”,19 September 2008, http://www.guardian.co.uk/society/2008/sep/19/prisonsandprobation.civilliberties
*22 Jeff King: Should prisoners have the right to vote? by Constitutional Law Group, May 18, 2011, http://ukconstitutionallaw.org/2011/05/18/jeff-king-should-prisoners-have-the-right-to-vote/
*23 BBC News Magazine, Would prisoners use their right to vote? by Jon Kelly, 10 February 2011, interview with Bob Turney, http://www.bbc.co.uk/news/magazine-12392811
*24 BBC News, “UK prisoners’ right to vote”, 20 January 2011, http://www.bbc.co.uk/news/uk-11674014
*25 Judiciary of England and Wales, Magna Carta: “A precedent for recent constitutional change Lord Woolf, the Lord Chief Justice of England and Wales, 2005, http://www.judiciary.gov.uk/media/speeches/2005/magna-carta-precedent-recent-constitutional-change
*26 Dirk van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy, Penology and Human Rights, 2009, Oxford University Press (p254)
*27 Factsheet – Pilot judgments, March 2012, Case-Law analysis, Factsheets, http://www.echr.coe.int/ECHR/EN/Header/Press/Information+sheets/Factsheets/
*28 Burdov v Russia (no 2), (Application no. 33509/04), 15 January 2009, ECHR documents collection HUDOC http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*29 Ananyev and Others v. Russia, (Applications nos. 42525/07 and 60800/08), 10 January 2012, ECHR documents collection HUDOC http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*30 Supervision of the execution of judgments of the European Court of Human Rights, Annual report, 2009, Council of Europe 2010
*32 Supervision of the execution of judgments of the European Court of Human Rights, Annual report, 2010, Council of Europe, April 2011
*33 Scoppola (no. 3) v. Italy, (Application 126/05), 18 January 2011, ECHR documents collection HUDOC http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*34 Ed Bates, University of Southamton, Senior Lecturer in Law at the University of Southampton, 14 February 2011,Controversy over Prisoners’ Right to Vote in UK, http://echrblog.blogspot.co.uk/2011/02/controversy-over-prisoners-right-to.html
*35 BBC News Politics, “MPs reject prisoner votes plan”, 10 February 2011, http://www.bbc.co.uk/news/uk-politics-12409426
*36 Alekseyev v. Russia, (Applications nos. 4916/07, 25924/08 and 14599/09), 21 October 2010, ECHR documents collection HUDOC http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
*37 Soering v. the United Kingdom, (Application 14038/88), 7 July 1989, Series A no. 161, §87, ECHR documents collection HUDOC http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en