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Giving Prisoners the Vote: The Complete Mischaracterisation of an Issue
October 27, 2012 4:00 AM
By Michael Chizlett
By Michael Chizlett
The long running dispute over the ECtHR ruling in Hirst v United Kingdom (No. 2), requiring Britain to give prisoners the right to vote, has broken out again with David Cameron saying unequivocally that "prisoners are not getting the vote under this Government." [1]
The blanket ban on all prisoners getting the vote was maintained last year by a 234 to 22 vote in the House of Commons. Mr Cameron said "If it helps by having another vote in Parliament on another resolution to make absolutely clear, to help put the legal position beyond doubt, I am very happy to do that."[2]
When I first read the headlines on this issue I was outraged, the idea that we might be forced to give the vote to criminals was as sickening to me as it was to David Cameron. The implications of such a ruling were massive, what was to stop politicians pandering to convicted criminals to win elections? It seemed anathema to me to give prisoners of the state a say in how the state is run - surely they'd all vote for the most lenient politicians and it was surely stupid that the state could deprive prisoners their liberty but not their vote. When they committed their crime they had forfeited their right to have a say in how our country was governed.
My opinion however completely changed when I actually read what the ECtHR had to say and what it was actually asking the UK government to do. The debate has been completely mischaracterised as one about giving the rapists and murders the vote when in reality it was about protecting the average citizen's rights in a democratic society - if this seems unlikely on the face of it I would ask you to please bear with me.
The case of Hirst v United Kingdom (No. 2) was decided by the ECtHR in October 2005. Mr Hirst was a prisoner who had been convicted of manslaughter; he was sentenced to discretionary life in prison. He, like all prisoners, was barred from voting in parliamentary or local elections by s3 of the Representation of the People Act 1983; he sought a declaration under s4 of the Human Rights Act 1998 that s3 of the 1983 Act was incompatible with the ECHR. When the UK Courts refused he took his case to the ECtHR arguing that he had been disenfranchised contrary to Art.3 of Protocol No.1.[3]
The Court held that the right to vote is not a privilege. Indeed many would agree it is a basic and fundamental human right. The Court said that "In the 21st century, the presumption in a democratic state must be in favour of inclusion". [4] However crucially it said that "the rights bestowed by Art.3 of Protocol No.1 are not absolute" and are open to a wide margin of appreciation saying "There are numerous ways of organising and running electoral systems... it is for each Contracting State to mould into its own democratic vision."[5] The Court acknowledges that it is for each individual state to decide how their voting systems work and is open to a voting ban but not the blanket ban the UK currently has in place. Under our current system a person who has committed a minor offence and is sentenced to just one day in prison would be denied the right to vote on that day. This isn't about whether people like Hirst get the vote; it's about ordinary people. Just because you get a bit too rowdy at an England game, or dodge a parking ticket once too often, or get caught speeding doesn't mean you should be denied the opportunity to exercise your basic democratic right "The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art.3 of Protocol No.1"[6]