Examination Code: R12630
Module Code: 6FFLK020
Date of Submission: 28/03/2013
he majority of democratic societies recognise the right to vote as an essential human right. Despite this, there are a number of countries where leaders believe that the disenfranchisement of prisoners, merely as a result of their imprisonment, is a justified and prerequisite manifestation of punishment. The United Kingdom is one these countries but the case of Hirst in 2005 has forced the UK to revaluate its position, and has seen the debate of prisoners’ right to vote resurface in light of this case. In answering the question of whether all prisoners should be given the right to vote or whether it should be limited only to some or to none at all, this essay will first discuss the philosophical backgrounds to civil and political rights in general and what happens to these rights when the law is breached. It will then analyse a number of different moral and legal arguments in favour of and against giving prisoners a right to vote and contextualise the arguments by considering positions in different countries. The essay will conclude by declaring full support of Article 3.1 of the European Convention on Human Rights that all prisoners should have a right to vote. A basic right can be defined as an entitlement; a right to do something or a right not have something done to you. A person can declare a right when he or she makes a claim to the performance of somebody else. The right will be considered legal if the corresponding duty is owed at law and moral if the duty is morally enforceable. Whether it is a right to life, a right to vote or the freedom to act without somebody else’s permission, the underlying fact is that rights structure the form of governments, the content of laws, and the shape of morality as it may currently be perceived. The concept of having a set of guaranteed basic human rights is a cornerstone of all democratic societies, which infers that all worthy citizens have a right to political self-determination and that every person living in that society is allowed equal participation in the run up to decisions that may have an effect on their lives. Furthermore, considering the political importance of fundamental human rights, it is a thought-provoking note that some of these rights can be lost through punishment, mainly by breaking the law. The origin of this position has its roots in the social contract theory which has been advocated by moral philosophers such as John Rawls and Thomas Hobbes. Based on this principle, in the context of modern democracies, it implies that if a citizen breaches the contract he or she has with society by infringing the elementary principles of criminal law, that citizen will be sentenced to prison and will have to surrender certain additional rights beyond the inescapable loss of freedom; which in some jurisdictions includes the right to vote.
A congruous example would be the United Kingdom. Section 3 of the Representation of the People’s Act 1983, states that 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”, in effect applying a blanket ban on all convicted prisoners who are serving a sentence during election time. Indeed, Parliament see disenfranchisement as an additional punishment by way of imprisonment, embodied by the former Home Office Minister George Howarth in debating the Representation of the People Act 2000: “it should be part of the convicted person's punishment that he loses rights, and one of them is the right to vote”. The most persuasive evidence in support of prisoners’ rights to vote can be found in Article 3 of Protocol 1 in the European Convention on Human Rights (ECHR),...