The current legislation concerning prisoner disenfranchisement in the UK is covered in Section 3 of the Representation of the People Act 1983, and states that a ‘convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election.’ However, the legitimacy of such restrictions was called to question by the Hirst v United Kingdom case in 2004, to which the European Court of Human Rights responded by ruling that an absolute ban on prisoner voting in the UK breached Article 3 of the First Protocol to the ECHR (the right to free and fair elections). Although no progress has since been made, in that the government has not adequately addressed the ECHR’s concerns, the issue over prisoner disenfranchisement remains a live debate and sparks passion in both camps. In this article I will assess the strength of ‘Social Contract’ theory and its legitimacy in denying prisoners the right to vote.
Social contract theory is often attributed to John Locke and runs as follows; ‘by choosing to live in a civil society, we give tacit consent for the state to choose to make laws on behalf of the public good, and in turn, we live by them and support them. When the law is violated, the individual forsakes their right to participate in their own governance.’ In simpler terms, when an individual breaks the law they also fail to uphold their side of the social contract, and so the state is justified in removing said individual’s right to vote. This concept carries a great deal of rhetorical power when wielded by the media and is often referred to in political debate. However, it falls short on certain important grounds. Social contract theory is too broad to define, let alone determine, the punishment proportional to breaking it. Many nuanced versions of the social contract exist, there are no concrete rules, obligations or meanings. For example, as rightly stated by the European Court of Human Rights’ Grand Chamber in 2005, ‘it cannot simply be assumed that whoever serves a sentence has breached the social contract.’ It is not possible to justify a blanket ban on prisoner voting though on the grounds of breaking anything other than the rule of law.
It is often assumed that adhering to the social contract means abiding by all the laws of society, however, how can we determine what follows when such a contract is broken? Once an individual has broken the law, many fundamental rights do still remain protected. Since the prisoner is already excluded from the benefits of the social contract due to being incarcerated, removing the right to vote seems unfairly harsh. Furthermore, I would argue that the idea of the ‘social contract’ is only valid if it benefits all on an equal basis. Attorney Johnson-Parris posits, ‘disenfranchised felons are unequal parties to a contract that is fundamentally unfair in its formation and substance; thus, their social contracts should be invalidated on the grounds that they are unconscionable.’ Considering those most likely to commit crimes are often the ones benefiting the least from the idea of the ‘social contract,’ due to factors such as being trapped in the poverty cycle or struggling with unemployment, it seems unjust that it is on these grounds prisoners are denied the vote.
Perhaps the most common argument in response to this is that prisoners should lose such rights considered to be ‘luxury’ whilst incarcerated. However, I would argue that enfranchisement is not a luxury but fundamental to maintaining democracy and democratic legitimacy. It can be argued that affording prisoners the right to vote is just another step on the development of functioning democracy, in which all are granted equal opportunity to participate in processes that affect them directly.
What is certainly clear is that the legitimacy and relevance of the ‘social contract’ in itself is up for debate, and so, the idea that, as believed by many, it is on these grounds that felons are denied the right to vote is unjustified and unapplicable.
Isla, UVI (Year 13)
