Votes for Prisoners? Democracy and the European Convention on Human Rights

Decisions of the European Court of Human Rights
holding that the UK’s blanket ban on voting by convicted prisoners violates Article 3
of Protocol 1 to the European Convention on Human Rights have caused controversy in the
UK. One reason for this is the retributive attitude
of many people in the UK towards criminals: as a society, we do not seem to be interested
in what happens to people behind bars, despite the terms of Rule 3 of the Prison Rules 1999:
‘The purpose of the training and treatment of convicted prisoners shall be to encourage
and assist them to lead a good and useful life.’
A second reason is that attention has been diverted from the merits of the issue to a
different question: who should decide whether prisoners are to be allowed to vote? Should
it be the Queen in Parliament by way of an Act of the UK’s Parliament, or judges of the
European Court of Human Rights? The debate has generated more heat than light.
Mr. Cameron, the Prime Minister, said in Parliament in 2010, ‘It makes me physically ill even
to contemplate having to give the vote to anyone who is in prison.’ In 2011, the House
of Commons resolved by 234 votes to 22: That this House notes the ruling of the European
Court of Human Rights in Hirst v the United Kingdom in which it held that there had been
no substantive debate by members of the legislature on the continued justification for maintaining
a general restriction on the right of prisoners to vote; acknowledges the treaty obligations
of the UK; is of the opinion that legislative decisions of this nature should be a matter
for democratically-elected lawmakers; and supports the current situation in which no
prisoner is able to vote except those imprisoned for contempt, default or on remand.
I want to try to clarify some of the issues by saying a word or two about each of three
questions. First, what sort of right is the right to
vote, and how, in a society which long ago adopted a universal adult franchise, did prisoners
get left out? Secondly, how did the European Court of Human
Rights come to decide that the UK’s approach to prisoners’ voting violated the ECHR?
Thirdly, is there a clash between the judgment of the Court and the sovereignty of the UK
or of its Parliament? Before 1832, the right to vote was governed
by property. In general, voters had to satisfy a wealth test in order to be allowed to vote.
The wealth had to be in the form of estates in land, or real property. In consequence,
the right to vote was seen as a form of property, so in 1702, in Ashby v. White, a plaintiff
recovered damages from an election officer who had wrongly refused to allow him to exercise
his right to vote. Under these conditions it would be very unusual for a person qualified
to vote to be in prison, so there was no issue as to whether prisoners should be allowed
to vote. The sort of people who went to prison would not have been able to vote even had
they been free. When the franchise was progressively extended,
starting with the 1832 Reform Act, and Parliament created an increasing number of criminal offences
(especially in the second half of the 20th century and the early 21st century), it became
more and more likely that people qualified to vote would be in prison at the time of
an election. The prison population rose from under 20,000 in 1900 to nearly 89,000 at the
end of 2011. Of these, 90% had been convicted of crimes, 9% were awaiting trial, and 1%
were in prison in connection with non-criminal matters. It follows that about 80,000 people
were disenfranchised. In the 19th century, denying convicted prisoners
a vote was not philosophically problematic. Unlike those people who voted by virtue of
property qualifications, and so had seen the vote as a right, the new, wider electorate
had never been able to vote. Not extending the vote to prisoners did not deprive them
of any right; they were merely refused the grant of a new right.
By the time the UK’s electorate was based on universal adult suffrage, however, one
might have expected serious consideration to be given to the remaining categories of
non-voters, of which prisoners formed the main group. But the refusal was carried forward
without serious debate in successive pieces of legislation; indeed, there was no discussion
of it at all during the passage of the most recent legislation, the Representation of
the People Act 1983. This is partly explicable by the fact that the law had traditionally
regarded convicted prisoners as being without any rights.
By the early 1980s, however, the position was changing. The common law was starting
to recognize that convicted prisoners retained those rights which were not inevitably taken
away by virtue of the very fact of imprisonment. Convicts went to prison as punishment, not
for punishment. Prisons were no longer no-go areas for courts. The changing attitude to prisoners was accompanied
by developments in international law. The UK was a party to Protocol 1 to the European
Convention on Human Rights, a treaty binding on states in international law. Article 3
provides: “Right to free elections
“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 does not sound like a strong assertion
of a universal right to vote, but the European Court of Human Rights in Strasbourg interpreted
it in the light of other human-rights treaties, including Article 25 of the International
Covenant on Civil and Political Rights (1976), to which the UK is a party, and of the constitutional
traditions of member states of the Council of Europe. On this basis, the Court held that
there was a right to universal adult suffrage unless there is a legitimate justification
for restricting a particular person’s right to be a candidate or an elector: Mathieu-Mohin
and Clerfayt v. Belgium (1987). To establish such a justification, a state would have to
show that the restriction served a legitimate aim and was proportionate to it.
The ECHR thus reinstates participation in elections for the legislature as a right.
Now, however, it is a human right, not a property right. In other words, everyone has the right,
and states have to justify taking it away from them. It might be justifiable to refuse
to allow non-nationals or non-residents to vote, but other excluding other categories
of people is more problematic. The matter came to a head for the UK when
prisoners started to bring cases to the Strasbourg Court claiming that the UK’s blanket ban on
their voting violated their right under Article 3 of Protocol 1. In Hirst v. UK (2004) a Chamber
of the Court accepted, somewhat doubtfully, that there might have been a legitimate aim
for the ban in deterring crime, but decided that it was not proportionate to the aim,
because it did not differentiate between types of offences or the circumstances of individual
offenders and offences. The UK had argued that the Court should give weight, through
the instrument of the so-called ‘margin of appreciation’, to the judgement of Parliament
that such a ban was justified, but this argument failed as the ban had not been debated during
the passage of the 1983 Act, so it was not clear what judgement (if any) had been made
concerning the relative weights of competing factors. In 2005, the Chamber’s judgment was
confirmed by the Grand Chamber of the Court. When the UK failed to take action to implement
the decision and the Court was therefore plagued by a growing number of applications from prisoners,
the Court in 2010 implemented the pilot judgment procedure against the UK, setting a timetable
for the UK to bring forward measures to remove the violation. The deadline is fast approaching.
This caused a good deal of annoyance among parliamentarians in the UK. It seemed to be
calling in question proceedings in Parliament, which no domestic court could do because of
Article IX of the Bill of Rights 1689. But that confuses domestic with international
law. Before the Strasbourg Court, the State is the respondent, not a particular institution
of the State. The task for the Court is to decide whether the State as a whole is responsible
for a violation of a Convention right. It does not matter, for the purpose of international
law, how a State chooses to organise its internal, constitutional arrangements.
Why, one might ask, should the Strasbourg Court be able to dictate to the UK what its
franchise should be? And why should the matter be decided by a judicial, rather than legislative,
body? The answer to both these questions is the
same. The Strasbourg Court has that responsibility because the UK conferred it on the Court.
Under the original form of the ECHR, states could choose whether or not to accept the
jurisdiction of the Court to receive applications from individuals complaining of violations
of their Convention rights. The UK accepted that jurisdiction in 1965, with effect from
1966, and renewed its acceptance periodically until the 1990s. A new treaty, Protocol 11,
was then agreed by all the member states of the Council of Europe, including the UK. It
amended the text of the ECHR to provide for the compulsory jurisdiction of the Court in
respect of individual applications. Since that Protocol came into force, the UK has
had no choice in the matter. But that was a result of the UK’s own choice. The Court
has not seized the power to apply the Convention to states. States, including the UK, have
voluntarily imposed on the Court a duty to do so. Does this result in a clash between the Strasbourg
Court and the sovereignty of the UK? No. By virtue of its sovereignty in international
law, the UK is entitled to enter into treaties. It did so: the ECHR and those of its Protocols
to which the UK is a party are the result of an exercise by the UK of its sovereignty.
Like any other contract, a treaty is made to be obeyed: pacta sunt servanda. Contracting
parties are not free to discard their obligations under a treaty unilaterally. To do so is to
breach international law. When a treaty provides for disputes to be determined authoritatively
and finally by a judicial body (in this case the European Court of Human Rights), it is
not open to a party to the treaty to complain about the process to which it has agreed when
a decision goes against it. Does it result in a clash between the Court
as a judicial body and the legislative sovereignty of the Queen in Parliament, one part of which
is electorally accountable? No. The Strasbourg Court has not told the UK what it has to do.
It has only said that the present position cannot be justified under the ECHR because
of the indiscriminate character of the ban on prisoners voting. In the most recent case,
Scoppola v. Italy (2012), in which the UK intervened, the Grand Chamber made it clear
that Article 3 of Protocol 1 does not even require an individualised, judicial decision
in each case as part of the sentencing process. An Act of Parliament can lay down bright-line
rules, as long as the rules are related to the nature of offences and circumstances of
offenders. This leaves considerable discretion to the legislature. It limits its room for
manoeuvre, but so does any international-law rule.
I hope that these reflections on the question of who should decide will have cleared away
some misconceptions and will allow us to turn our attention to the important matter, which
is what the best rule is. On this, I offer just two brief, concluding thoughts.
First, it is odd that the UK’s parliamentarians should place such emphasis on the electoral
accountability of the House of Commons as a source of its authority yet routinely deny
about 80,000 people the right to vote in elections to the House.
Secondly, the present position has an arbitrary impact. People who begin a sentence the day
after an election or are released the day before it can vote. People who are imprisoned
for contempt of court can vote; people who are imprisoned for shoplifting or drunken
behaviour in public cannot. Most curiously, people who are fined for stuffing fake ballot
papers into ballot boxes but are not imprisoned can vote at the next election; people imprisoned
for helping a terminally ill loved one to end her life voluntarily cannot. We really
do need to think seriously about the circumstances which justify depriving a person of the right
to vote.

Author Since: Mar 11, 2019

  1. Yes, I would think that voting would be more of a duty, than a right, as an offender would have the same choices as a non offender as to who would legislate. They are not excluded from the census, why be excluded from electing?

  2. I shall state the obvious " Do you want the same guy who killed,burgled,groomed,assaulted,sold people, commit GTA & burned places down like Tottenham to be given the same rights that we lawful people have been born lived & died for to keep ourselves free & democratic from those persecutions I humbly say WE DO NOT ALLOW such a thing to occur, imprisonment is supposed to be a punishment not a picnic in the park.

  3. I think Professor Feldman is one of those EU stooges injected into the UK establishment in this case in order to try and reconcile the British to continental law.

    His historical account of why the English did not allow prisoners the vote is almost a complete fiction. In pre-modern societies like !8th century Britain or ancient Greece they would only grant the vote to those whom they considered 'free'.Able to make an independent decision .They feared the manipulative power of demagogues on people swayed by emotion rather than reason. For this reason you find that the vote in ancient Greece was not granted to women or slaves and of course for the same reason to prisoners.In 18th century England it was not granted to women . It was only with the arrival of universal human rights that votes for prisoners was even considered as a possibility. It is just rubbish to suggest that it was because only the poor were in prison. The common Law of course adapted itself to include women but did not see any need to include prisoners.

    It is regrettable that the idea of being 'free' to vote has been lost largely because it has been obscured by our adoption of 'universal rights ' given to all. .It might have prevented many of our foolish interventions in middle eastern countries to 'advance democracy ' if our politicians had considered as their 18th century forbears would have done ;whether 'granting' human rights to people was possible among people who would not be free to exercise them uninfluenced by custom or tribal allegiances.

    Professor Feldman is anxious to conceal the fact that human rights have a different origin in the Common Law than they do in the continental application and hence we have a slightly different interpretation of them.

    I suspect to most people prisoners unable to vote is not considered a serious human rights violation and certainly not worth the trouble and expense of being forced to comply with it.
    The more Professor Feldman tells us that we are bound by such and such a protocol and that far from meaning what we think it means that the meaning is dependent on a further protocol the less he convinces us. As with his opinion on the Abu Qatada case :
    his explanations disappear into a legal fog which makes no sense to anyone other than lawyers.

  4. It is bad enough that people held hostage in prison don't already have a law in their favor & are suffering for it.
    They should absolutely have the right to vote. If government punishes them, then they have absolutely NO obligation to obey its laws.

  5. Here is a PARTIAL list of countries that allow prisoners to vote.
    List of countries that allow prisoners to vote while incarcerated:

    Czech Republic

    List of states in the US that allow it

    U.S. Territories
    Puerto Rico

Related Post