Should voting prisoners make you sick? : developing the legal through the theoretical to find the cure for Europe’s ailing right to vote

Abstract

In November 2010, United Kingdom Prime Minister David Cameron defiantly declared himself “physically ill” at the thought of convicted prisoners being given the vote. Five years previously, in 2005, the U.K’s blanket ban on prisoner voting had been declared disproportionate and arbitrary by the European Court of Human Rights at Strasbourg in the case of Hirst (No. 2). But fast-forward nine years to 2014 and defiance on disenfranchisement shows little sign of abating. This thesis, inspired by the multitude of questions raised by the UK’s continuing reluctance to enfranchise prisoners, uses a multidisciplinary approach to explore why the position is so strongly held, and finds a series of reasons. It draws upon human rights theory and takes the opportunity to present one possible approach to human rights that exposes the UK justifications’ reliance on background political considerations and a misunderstanding of human rights. The thesis goes on to show how the position of defiance is encouraged by the weakness of the provision for a right to vote in the European human rights system, in Article 3 of Protocol 1 to the European Convention on Human Rights. Article 3 of Protocol 1 is formulated in collective rather than individual terms and uncertainty has always surrounded the related jurisprudence. This thesis considers that the unfortunate and vague wording has led to the right to vote’s de facto shift from right to privilege, given that the entitlement is not universal and the Strasbourg Court allow the state a wide margin of appreciation even in denying a large majority of prisoners the vote. This thesis then sets about attempting to reverse the shift from right to privilege by identifying the problem; that the overuse of the margin of appreciation clouds important elements of the proportionality test that the Court fails to properly explore. The disenfranchisement of prisoners, for the most part, is not based on a sufficiently proportionate, legitimate aim that has a discernible and logical link with the means employed. It is asserted that adding more structure to these tests, as well as drawing on a balancing exercise inspired by the human righ