The Right to Vote in the UK - Essay Example

The right to vote in the UK is considered by many to be a privilege as well as an en ment, and that persons who are convicted of an offence serious enough to warrant a term in prison have cast aside that privilege and entitlement for the duration of their sentence...’ Discuss. The Bill of Rights 1689 was the first piece of legislation giving citizens of the UK the right to vote for parliamentary representatives. Although voting was allowed it was mainly aristocracy that were entitled to vote, and certain classes of people were exempted from being able to vote. In 1867 the Reform Act extended voting rights so that labourers were also given the right to vote, followed by the introduction of the Representation of the People Act 1918, under which women of property obtained the right to vote. Ten years later the Representation of the People Act 1928 gave all women the right to vote. Despite the right to vote being granted in 1689, many considered that certain persons should remain exempt from the right to vote, in particular those who had committed a criminal offence. This led to the introduction of the Forfeiture Act 1870, which specifically excluded those committed of a criminal offence from the right to vote. More recent legislation endorsed this view as was evidenced by the Representation of the People Act 1983 s3 which was further amended in the Representation of the People Act 1985 and 2000. At present the blanket ban remains in force for those persons who have received a criminal conviction. This is despite objections made by the United Nations in December 2001 in the Concluding Observations of its International Covenant on Civil and Political Rights, Human Rights Committee. During this Convention the representatives expressed their opinion that denying prisoners the right to vote was a ‘principal subject of concern.’ The denial of the right to vote reached the attention of the media in 2005 when a prisoner by the name of Hirst took the case to the European Court of Human Rights1. The court in this case reached the conclusion that the automatic and indiscriminate restriction on the right of convicted prisoners to vote was incompatible with Art 3 of Protocol 1 of the ECHR. Under Art 3 it states ‘ 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 ECHR stated that conviction of a criminal offence should not prevent that individual from being able to exercise their right to vote. Despite this ruling, the UK government has still failed to review legislation in this area. The ECHR made it clear in their decision that the UK government had an obligation to review and amend the legislation to comply with the requirements of Art 3 of Protocol 1. Many have argued that denial of the right to vote should be continued, on the basis that the person who has been convicted of a crime has relinquished their right to vote, by failing to adhere to the law of the land. However, other campaigners, for example The Prison Reform Trust and UNLOCK, are adamant that the archaic denial of the right to vote should be removed from legislation. In order to be able to express an opinion as to whether the right to vote should be given to prisoners, it is necessary to understand why the right to vote was initially denied to such persons. Consideration will also be given to the attitudes of the general public as a whole, with regard to whether they believe that prisoners should continue to be denied the right to vote. It is anticipated that those who have been victims of crime will endorse the government decision to deny prisoners the right to vote. It will also be necessary to consider the opinions expressed by campaigners who want prisoners to be given the right to vote in order to determine whether they are right to demand that prisoners should be given this right. The denial of the right to vote enshrined in the Forfeiture Act 1870 s2 was based on the principal that those who had committed an offence contrary to the laws of the land should be punished by withdrawing all their rights of citizenship. Although the 1870 Act had the effect of depriving a convicted felon the right to vote, the deprivation was not meant to encompass all classes of prisoners, but only those who held public office prior to conviction. During the 1870’s the common man did not possess the right to vote, and so there was no need for the Act to make a distinction in relation to ordinary prisoners (Cheney, 2008). Despite the fact that the Act was not intended to encompass all prisoners, society has adopted the view that those who commit crimes should be denied the right to vote, and should be denied citizenship during the duration of their sentence. The first challenge made by Hirst occurred in 2001 in R v Secretary of State for the HIme Department Ex P Pearson and Martinez; Hirst v Attorney- General [2001]2. Kennedy LJ refused to accept that the denial of the right to vote was a breach of Art 14 ECHR or Art 3 of Protocol 1 stating that ‘the rights in question are not absolute... there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle excluded by Article 3.’ He went on to point out that by committing offences which were punishable through a custodial sentence these persons had effectively forfeited their right to vote until they were released from custody. Kennedy LJ observed that Parliament had clearly decided through legislation that one of the consequences of incarceration would be the loss of the right to vote, and that the courts should not interfere with the principals enshrined in statute. In reaching their decision the Lords likened the restriction to the right to vote to events were others would be prevented from voting, such as those persons who were out of the country during the voting period. The Lords commented that the incarceration of the individual was a bar for them being able to attend a polling station, in the same way that a person abroad on holiday at the time of the election would also be unable to cast their vote. Despite the decision of the House of Lords, the complainants asked for the case to be remitted to the ECHR, at which hearing it was decided that a blanket ban on prisoners, in this manner was a clear breach of their human rights. Although the ECHR ruled that prisoners should be allowed to vote, they did not specifically rule that this should be a right granted to all those who have been incarcerated, but instructed the UK government to review the legislation. In 2006 the consultation paper Voting Rights of Convicted Prisoners Detained within the United Kingdom was published, in which the Government acknowledged that there should be a review of the blanket ban on prisoners. A statement was issued by Lord Falconer of Thoroton on 2 February 2006 confirming that the Government would be reviewing the rights of prisoners to vote. Following this, the Government proposed a 2 stage consultation process, in which the arguments for and against the right to vote being given to prisoners would be discussed, as well as a debate as to whether there should be any enfranchisement in this area. In the second stage the Government promised to look at the impact that would result and the changes that would need to be made in order to implement the change. This would involve a change in legislation as well as added responsibility to those involved in maintaining the electoral register, and the implications on the prison service, in being able to supply facilities where prisoners would be able to cast their vote. The consultation paper defended the decision of the Government enacted in the Representation of the People act 2000, stating that denying prisoners the right to vote did not impair the right mentioned in Article 3 of Protocol 1 as long as the restriction pursued a legitimate aim and satisfied the test of proportionality. The paper went on to highlight how the restriction on voting rights had two aims, to prevent crime and punish offenders, and enhance civic responsibility and respect for the rule of law by depriving those who have seriously breached the basic rules of society of the right to have a say in the way in which such rules are made for the duration of their sentence. The paper argued that the UK is proportionate in these aims as the law does distinguish between the reasons for the person’s detention in prison, and only those crimes that are sufficiently serious will result in incarceration. The paper highlighted how those who were issued with a community service penalty would not be prevented from voting, nor would those imprisoned for contempt of court. Restrictions also do not apply to persons on remand, or those who have been imprisoned for non-payment of a fine. It was also observed that the right to vote is re-established once the person has been released from prison. When the matter was referred to the Grand Chamber in 2005, Judge Caflesh made the observation that disenfranchisement of prisoners should be restricted to those convicted of major crimes, and should reflect the seriousness of the offence. Judge Caflesh went on to say that any restriction on voting rights should be confined to the punitive part of the sentence imposed on the convicted person. The Grand Chamber concluded that automatic disenfranchisement based purely on what might offend public opinion is unacceptable under the Convention system. Although the ruling of the Grand Chamber imposes a responsibility of the UK Government to consider enfranchisement of prisoners, the judgment did not say that the right to vote had to be given to all prisoners. This has caused increasing problems, as the Government has attempted to thwart the compliance with the ruling by continually producing proposals with regard to which prisoners should be enfranchised and which should remain disenfranchised. In their latest suggestion, the Government proposed enfranchisement for any prisoner who was issued with a sentence of less than 4 years. This has been rejected by groups such as the Prison Reform Trust and UNLOCK, on the basis that the seriousness of the crime has not been addressed. Following the initial consultation paper in 2006, the results of the second stage discussion were published in April 20093 in which 4 suggestions were made with regard to the enfranchisement of prisoners. The options considered included allowing those sentenced to 1 year or less, the automatic right to retain their voting rights, subject to certain exceptions, or, those sentenced to less than 2 years, being automatically entitled to retain their right, or, those sentence to 4 years or less, or alternatively, an automatic right for persons sentenced to 2 years or less and the discretion on the part of the court to consider enfranchisement for those with a sentence between 2 and 4 years, based on the seriousness of the offence. Under all circumstances, the right to vote should be denied to anyone who has received a custodial sentence in excess of 4 years. This led to an article being published in the Telegraph, 9 April 2009, in which, Jack Straw announced the Government’s proposal that those imprisoned for periods up to 4 years would be entitled to vote. This was strongly opposed by the shadow Justice Secretary Dominic Grieve, who made the comment that ‘Many people will question whether this is a sensible development. The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic right go with civic responsibility, but there rights have been flagrantly violated by those who have committed imprisonable offences4.’ This was endorsed by Mark Wallace of the Taxpayers’ Alliance who observed ‘it would be disgusting to let tens of thousands of criminals have an equal cote as the law abiding majority. These convicts never gave a second thought to the rights of others when they committed their crimes so their right to vote should be forfeited5.’ Despite the ongoing debate into the rights of prisoners to vote, the UK government has failed to implement the right to vote being established. It has been argued that failure by the Government to enact the right to vote before the next general election will amount to a breach of human rights, and could lead to other prisoners bringing actions against the UK for this breach6. According to Euranet, 24 February 2010, the general election could be declared unlawful if the rights of prisoners to vote have not been granted7. These arguments has been endorsed by the Prison Reform Trust and UNLOCK, who concur that the general election ought to be declared unlawful if the Government continues to fail to comply with the ruling of the ECHR8. In the light of Hirst, it would appear that the failure of the UK Government to be able to agree to an acceptable determination of a persons right to vote could to the impending general election being deemed in breach of human rights law. This could cause problems, as challenges could be made in respect of the newly elected government. Although the ECHR has ruled that a blanket ban offends against human rights, there is no insistence that all prisoners should be granted the right to vote. However, the Government has a responsibility to ensure that some form of agreement has been reached before the next election, otherwise the newly elected government might be challenged on its legitimacy, which could result in a further election having to be held, in order to fulfil the requirements of the ECHR ruling. Many of the objections to prisoners being given the right to vote, stem from the argument that those who have been incarcerated have offended against the law of the land, and therefore have chosen to live outside of a moral society, so should not have a say in how that society is governed. Those in favour of prisoners being given the right to vote are of the opinion that allowing them the right to vote will have very little impact on them as a whole. However, others would argue that prisoners are more likely to vote for a party that promises alternatives to custodial sentences, thereby increasing their chances of an early release, or no custodial sentence for repeat offences when released. References Consultation Paper CP 29/06, Voting Rights of Convicted Prisoners Detained within the United Kingdom, The UK Government’s response to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst, Department for Constitutional Affairs, available at www.dca.gov.uk Robert Winnett & Tom Whitehead, Prisoners to get right to vote after 140 years following European Ruling, 9 April 2009, The Telegraph Geoff Meade, UK must give prisoners the right to vote in next general election, says Europe, The Scotsman, 8 March 2010 http://www.euranet.eu/eng/Today/News/English-News/Prisoners-fight-for-the-right-to-vote Consultation Paper 6/09, Voting Rights of Convicted Prisoners Detained within the United Kingdom, Second stage consultation, The Ministry of Justice, available at http://www.justice.gov.uk/consultations/docs/prisoner-voting-rights.pdf http://www.prisonreformtrust.org.uk/standard.asp?id=2068 Steve Foster, Prisoners and the Right to Vote – the decision in Hirst v United Kingdom (No2), 2004, European Human Rights Law Review Tom Lewis, “Difficult and slippery terrain”: Hansard, human rights and Hirst v UK, 2006, Public Law review Steve Foster, Reluctantly restoring rights: responding to the prisoner’s right to vote, 2009, Human Rights Law Review. 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