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Llewellyn's law job theory and the challenge of the current ban on prisoners' voting. Should prisoners in the United Kingdom be granted the right to vote?

by M. T. (Author)

Essay 2016 10 Pages

Law - Criminal process, Criminology, Law Enforcement

Excerpt

Content

I.

II.
1. Llewellyn’s law job theory
2. General provisions relating to voting rights
a. UK law
b. European law
3. Treatment of prisoner voting rights by several authorities
a. ECtHR
b. UK government
4. Evaluation

III.

IV. Reference list
1. Cases
2. Legislation
3. Publications by Parliament
4. Articles
5. Books
6. Websites

Task:

The Human Rights Act 1998 gives effect to the European Convention on Human Rights. However, there are frequently tensions between the UK and the European Court of Human Rights as to the nature and extent of how some substantive rights operate. Consider the following Parliamentary briefing paper (www.parliament.uk/briefing-papers/sn01764.pdf) and comment upon how each instrument and the respective authorities deal with prisoner voting rights. In doing so please consider the operation of Llewellyn’s law jobs.

I.

Should prisoners in the United Kingdom be granted the right to vote? Several cases – Hirst v The United Kingdom (No 2) [1] probably being the most popular example, where the convicted sought to challenge the current ban on prisoners’ voting – raised this issue in the recent years. A highly controversial debate was thereby initiated, especially against the backdrop of frequently arising tensions between the UK and the European Court of Human Rights (ECtHR) as to the nature and extent of how some substantive rights operate. Since the Human Rights Act 1998 incorporates the rights contained in the European Convention on Human Rights (ECHR) into the law of the UK, the national courts are generally obliged to interpret national law in a manner compatible with the ECHR and to consider the decisions of the ECtHR[2].

The aim of this essay is to work out and comment upon the treatment of prisoner voting rights by different instruments and the respective authorities on the basis of the parliamentary briefing paper dated from 11 February 2015[3] with particular consideration of the implementation of Llewellyn’s law jobs. First, this essay will present Llewellyn’s law job theory, then it will outline general provisions relating to voting rights. In the next section, the ECtHR’s and the UK government’s point of view on this debate will be critically examined, followed by an evaluation referring to the operation of the law jobs, especially emphasizing tensions regarding the resolution of trouble cases and the guiding of people’s conduct.

II.

1. Llewellyn’s law job theory

Llewellyn’s law job theory is important in order to understand what law does[4]. Essential to its nature is the idea that every human group has to fulfil particular needs or assure that certain jobs are done in order to survive and to achieve its aims[5]. Accordingly, society needs to determine how trouble cases are handled and therefore the allocation of authority is a vital aspect; the job of preventive (re-)channelling of conduct serves to regulate the group life to avoid trouble or to adjust to changes and the so-called ‘net drive’ seeks to provide direction and incentive within the group[6]. The fifth job of ‘juristic method’ is added to emphasize that certain skills and practices need to be developed[7].

2. General provisions relating to voting rights

a. UK law

According to Section 3 of the Representation of the People Act 1983, as amended by the Representation of the People Act 1985, prisoners who serve a custodial sentence in the UK are denied the right to vote[8]. A different rule applies to remand prisoners under the amended Representation of the People Act 2000 who are thereby granted the right to take part in elections.[9] Thus, the legal rule establishing a blanket ban in the UK adopts a very strict and straightforward point of view regarding the incarcerated persons’ voting rights.

b. European law

In contrast, Article 3 of Protocol 1 to ECHR, which was drafted in 1950 by the Council of Europe, guarantees free elections under conditions which ensure the free expression of the own opinion[10]. This provision binds all contracting parties to the convention and seems to follow a liberal approach by suggesting that everyone – without exception – is entitled to participate in elections.

3. Treatment of prisoner voting rights by several authorities

a. ECtHR

As mentioned above, Hirst v UK (No 2) raised a controversial debate in view of granting incarcerated people voting rights. In this case, John Hirst, a prisoner sentenced to life for manslaughter, sought to challenge the ban on prisoners’ voting which was possible through the incorporation of the rights contained in the ECHR into the law of the UK, thereby making remedies for a breach of a convention right available in UK courts[11]. In its judgement, the ECtHR’s Grand Chamber held that Article 3 of Protocol 1 to ECHR had been violated. However, it also recognized that the right to vote under this protocol is not absolute and the contracting states to the ECHR must be granted a certain amount of discretion with reference to determining what limitations on this right are proportionate[12].

Referring to the allocation of authority of Llewellyn’s law jobs it can be observed that it is up to the ECtHR to determine fundamental rules on an overall basis which the contracting states have to implement in their own jurisdiction and comply with. Thus, the ECtHR stands above the English courts concerning human rights by allowing its decisions to be supreme in a conflict between UK law and supranational law[13] with the consequence that it is granted a higher, independent authority than the contracting states’ courts. However, as the ECtHR often only frames general rules and guidelines, the contracting states’ courts can exercise a certain amount of discretion relating to the particular implementation into their local law, thereby maintaining their parliamentary sovereignty to some extent.

As the ECtHR ascertained a continuing violation of Article 3 of Protocol 1 to ECHR in two recent judgements in August 2014 – Firth v UK [14] – and February 2015 – McHugh v UK [15] – it is emphasized that it strongly adopts a clear and definite point of view with regard to entitling prisoners to vote.

b. UK government

In comparison, the UK government insists on maintaining the blanket ban on prisoner voting; according to the Prime Minister David Cameron, arrested people should lose their individual rights following their incarceration[16]. However, as the ECtHR ruled that the current law in the UK regarding prisoner voting rights is incompatible with the ECHR, the government has to change the provision presently in breach of Article 3 of Protocol 1 to ECHR. Different options have been developed, including the idea that people whose sentence is less than four years should be allowed to vote unless the judge considers this inappropriate in the specific case[17]. Thereby it is revealed that the UK government seeks to retain the exclusion of imprisoned people from elections as far as possible. It is implied that the government intends to keep the legal change as little as possible by implementing the Hirst judgement in a way that fulfils the government’s legal obligations, but does not go beyond that. By neglecting the already extended deadline to change the current law[18], the government’s reluctance to introduce any changes is emphasized. In the Backbench Debate on 10 February 2011, the House of Commons still supported the continuation of the current ban[19].

This failing willingness to comply with the ruling of the ECtHR may interfere with the successful functioning of Llewellyn’s law jobs concerning the disposition of the trouble case: the ECtHR stated that it is generally considered to be an issue for parliament to adapt the current law, however the UK government does not seem to take any steps towards a quick correction of the present law. This may lead to delays and uncertainty as to how disputes over prisoner voting rights will be resolved. Furthermore, regarding the preventive channelling of conduct, clarity about the permitted leeway might be missing as the UK government has not yet set a clear regimentation with the consequence that people cannot adjust their conduct appropriately. The aim should be to set a precise regulatory framework which prevents disputes in society and effectively enforces the human rights contained in the ECHR in the UK.

4. Evaluation

According to the then Minister of State of the Home Office, Baroness Scotland of Asthal, successive governments confirm the view that incarcerated people who had convicted serious crimes forfeited their moral authority to vote[20]. In light of the fact that these are blameworthy people who should not have influence on the political and social life to preserve important and established moral values this line of argumentation by the UK government sounds reasonable. On the other hand, you should differ between morality and politics as they are not necessarily intermingled. Even though prisoners might be morally blameworthy and therefore should not be granted the right to declare their view concerning ethical questions, they should still be granted a right to convey their political opinion since the political view of an imprisoned man need not necessarily be more detrimental than the one of a free person. Seen from this perspective, the government’s argument can be disputed.

Additionally, it is argued that there are various ways for prisoners to express their opinion about the conditions in prisons, such as by writing to a Member of Parliament[21]. However, by completely denying prisoners the right to vote, it comes across as if their voice is oppressed and they are no longer worthy of being part of society. As Kate Green, a member of the Labour Party, declared, all people, including prisoners, should be treated with respect[22]. Moreover, Charles Kennedy’s statement that citizens are citizens[23] should be welcomed as it is crucial not to further exclude prisoners from society. They already face the penalty of being excluded from a free social life so it should rather be the aim to attempt to reintegrate them by preparing for and simplifying their situation when their sentence is finished. Otherwise, prisoners might not aim to reintegrate into a society that does not grant rights to them[24].

Special focus shall be placed on the important aspect of reintegration: In this regard, voting rights may help prisoners to develop their sense of social responsibility so the Prison Reform Trust (PRT) holds the view that all UK prisoners should be entitled to vote[25]. Although it is possible to argue that the legal prohibition to vote is only temporary, the PRT is right in stating that elections may encourage prisoners to take responsibilities that are associated with citizenship[26] on the condition that they are taken seriously because they might induce prisoners to reconsider their attitude. In contrast, a ban on voting neither contributes to the prisoners’ rehabilitation nor does it protect the public, rather, it further excludes those already on the margins of society[27].

On the one hand, in line with Llewellyn’s idea of the provision of incentive and direction within a group, the better solution would be to entitle prisoners to vote since it enhances the group feeling. On the other hand, if only those prisoners who committed serious crimes and whose sentences are long are banned from voting, this might create more incentive not to commit crimes in order to keep the right to take part in elections.

With the objective of ensuring that the law jobs are well executed, the most appropriate solution might therefore be to make the electoral disqualification dependent upon the duration of the sentence or the crime committed. This may be justified by the indication that those who are truly blameworthy and thus imprisoned for a long period as a result of having committed serious crimes have clearly shown that they disregard the values and basic moral ideas of society. For instance, the ban on voting in Germany only applies to prisoners whose crimes are a real threat to society and target the integrity of the state[28]. However, this raises the question of how to determine the dividing line of the sentence length from which the voting right shall be prohibited. Since the issue was raised that a four-year boundary would practically still be a blanket ban due to the huge amount of prisoners still not entitled to vote[29], the possibility to grant prisoners with a sentence either less than 12 or 6 months the right to vote, as announced in the Joint Committee’s Draft Voting Eligibility (Prisoners) Bill 2013[30], should be endorsed.

The fact that the government has still not reached a decision yet emphasizes the difficulty of the issue and its reluctance to withdraw from the blanket ban. Even so, it is important that the government quickly finds a solution in order to establish certainty concerning the prisoners’ voting rights in the UK as well as clarity as to how disputes will be resolved in future. Moreover, the ECtHR may forfeit its authority and credibility by local governments not facing any consequences when they defer the process of implementing the ECtHR’s decisions in their national law. So that Llewellyn’s law jobs function well, it should be considered to impose negative consequences on the contracting states that seem to defy the rulings of European courts; otherwise the ECtHR’s authority tends to only exist in appearance, but not in reality.

III.

Overall, it was shown that the law jobs are not restricted to the national level and that the debate on prisoner voting rights is a difficult area. It is understandable that the contracting states’ governments intend to adapt their national law only to the extent that it meets the legal obligations imposed by the European courts, but does not go further than that in order to maintain their parliamentary sovereignty. However, this might counteract the aim to establish a society in which Llewellyn’s law jobs are carried out well as it erodes the cohesion between the national and the supranational level and it lacks certainty regarding the clear resolution of trouble cases. Hence, further focus should be placed on the aim of improving organization, clearly allocating authority and promoting cooperation.

IV. Reference list

1. Cases

- Firth v UK (App no 47784/09) (2014) ECHR 540
- Hirst v UK (No 2) (App no 74025/01) (2005) ECHR 681
- McHugh v UK (App no 51987/08) (2015) ECHR 155

2. Legislation

-Human Rights Act 1998
-Protocol 1 to the European Convention of Human Rights (supplemented to the Convention in 1952)
-Representation of the People Act 1983, amended by the Representation of the People Act 1985
-Representation of the People Act 2000

3. Publications by Parliament

-Horne A and White I, ‘Prisoners’ voting rights’ (11 February 2015) Standard Note: SN/PC/01764 House of Commons Library <www.parliament.uk/briefing-papers/sn01764.pdf>
-House of Commons Debate 3 November 2010, vol 517, col 921
-House of Commons Debate 20 December 2010, vol 520, col 151WS
-House of Commons Debate 11 January 2011, vol 521, col 7WH
-House of Commons Debate 11 January 2011, vol 521, col 8WH
-House of Commons Debate 10 February 2011, vol 523, col 493
-House of Commons Debate 6 September 2011, vol 532, col 13WS
-House of Commons Debate 23 May 2012, vol 545, col 1127
-House of Lords Debate 20 October 2003, vol 653, col WA143
-Joint Committee (House of Lords, House of Commons), Draft Voting Eligibility (Prisoners) Bill (HL 103/HC 924, 18 December 2013)
-Political and Constitutional Reform Committee, Voting by Convicted Prisoners: Summary of Evidence (HC 776, 9 February 2011)

4. Articles

-Llewellyn KN, ‘The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method’ (1940) 49 (No 8) The Yale Law Journal 1355
-Prison Reform Trust, ‘Barred from Voting: The Right to Vote for sentenced Prisoners’ (February 2010) <http://www.prisonreformtrust.org.uk/Portals/0/Documents/barred%20from%20voting%20Feb%202010.pdf>
-Prison Reform Trust, ‘Barred from Voting: The Right to Vote for Sentenced Prisoners’ (February 2011) <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Votesbriefingfeb2011_Layout%201.pdf>
-Twining W, ‘The Idea of Juristic Method: A Tribute to Karl Llewellyn’ (1993) 48 University of Miami Law Review 119
-Joint Committee (House of Lords, House of Commons), Draft Voting Eligibility (Prisoners) Bill (HL 103/HC 924, 18 December 2013)
-Political and Constitutional Reform Committee, Voting by Convicted Prisoners: Summary of Evidence (HC 776, 9 February 2011)

5. Books

-Adams JN and Brownsword R, Understanding Law (4th edn, Sweet and Maxwell 2006)
-Llewellyn KN and Hoebel EA, The Cheyenne Way – Conflict and Case Law in Primitive Jurisprudence (1st edn 1941, 8th printing 1987, University of Oklahoma Press, Norman and London)
-Slapper G and Kelly D, The English Legal System (16th edn, Routledge 2015)
-Twining W, Karl Llewellyn and the Realist Movement (Weidenfeld and Nicolson 1973)

6. Websites

-Bottomley P, Brain TJ and others, ‘Don’t deny the vote’ (The Guardian, 2 March 2004) <http://www.theguardian.com/politics/2004/mar/02/prisonsandprobation.uk> accessed 14 December 2015

[...]


[1] Hirst v UK (No 2) (App no 74025/01) ( 2005) ECHR 681.

[2] Human Rights Act 1998, ss 2, 3; Garry Slapper and David Kelly, The English Legal System (16th edn, Routledge 2015) 178, 215.

[3] Alexander Horne and Isobel White, ‘Prisoners’ voting rights’ (11 February 2015) Standard Note: SN/PC/01764 House of Commons Library <www.parliament.uk/briefing-papers/sn01764.pdf>.

[4] John N Adams and Roger Brownsword, Understanding Law (4th edn, Sweet and Maxwell 2006) 9.

[5] Karl N Llewellyn and E Adamson Hoebel, The Cheyenne Way (8th printing, Oklahoma 1987) 290; William Twining, Karl Llewellyn and the Realist Movement (Weidenfeld and Nicolson 1973) 175.

[6] Karl N Llewellyn and E Adamson Hoebel, The Cheyenne Way (8th printing, Oklahoma 1987) 293.

[7] William Twining, ‘The Idea of Juristic Method: A Tribute to Karl Llewellyn’ (1993) 48 U Miami L Rev 119, 130, 136–138; Karl N Llewellyn, ‘The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method’ (1940) 49 (No 8) The Yale Law Journal 1355, 1392–1394.

[8] Representation of the People Act 1983, amended by the Representation of the People Act 1985, s 3(1).

[9] Representation of the People Act 2000, s 7A.

[10] European Convention on Human Rights, Protocol 1 Article 3.

[11] Human Rights Act 1998, ss 1, 2, 7(1).

[12] Hirst v UK (No 2) (App no 74025/01) (2005) ECHR 681 para 41.

[13] Garry Slapper and David Kelly, The English Legal System (16th edn, Routledge 2015) 183, 201, 215.

[14] Firth v UK (App no 47784/09) (2014) ECHR 540.

[15] McHugh v UK (App no 51987/08) (2015) ECHR 155.

[16] HC Deb 3 November 2010, vol 517, col 921; HC Deb 23 May 2012, vol 545, col 1127.

[17] HC Deb 20 December 2010, vol 520, col 151WS.

[18] HC Deb 6 September 2011, vol 532, col 13WS; Alexander Horne and Isobel White, ‘Prisoners’ voting rights’ (11 February 2015) Standard Note: SN/PC/01764 House of Commons Library 39–40.

[19] HC Deb 10 February 2011, vol 523, col 493.

[20] HL Deb 20 October 2003, vol 653, col WA143.

[21] Ibid.

[22] HC Deb 11 January 2011, vol 521, col 7WH.

[23] Alexander Horne and Isobel White, ‘Prisoners’ voting rights’ (11 February 2015) Standard Note: SN/PC/01764 House of Commons Library 8.

[24] HC Deb 11 January 2011, vol 521, col 8WH.

[25] Prison Reform Trust, ‘Barred from Voting’ (February 2011) 1, 10.

[26] Prison Reform Trust, ‘Barred from Voting’ (February 2010) 6.

[27] Peter Bottomley, Terence J Brain and others, ‘ Don’t deny the vote’ (The Guardian, 2 March 2004) <http://www.theguardian.com/politics/2004/mar/02/prisonsandprobation.uk> accessed 14 December 2015.

[28] Alexander Horne and Isobel White, ‘Prisoners’ voting rights’ (11 February 2015) Standard Note: SN/PC/01764 House of Commons Library 9.

[29] Political and Constitutional Reform Committee, Voting by Convicted Prisoners: Summary of Evidence (HC 776, 9 February 2011) 5.

[30] Joint Committee (House of Lords, House of Commons), Draft Voting Eligibility (Prisoners) Bill (HL 103/HC 924, 18 December 2013) 48.

Details

Pages
10
Year
2016
ISBN (eBook)
9783656986164
ISBN (Book)
9783656986171
File size
580 KB
Language
English
Catalog Number
v337103
Grade
68%, 11 Punkte
Tags
prisoners voting Llewellyn law jobs right to vote ban Hirst v United Kingdom European Court of Human Rights Human Rights Act 1998 European Convention on Human Rights

Author

  • M. T. (Author)

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Title: Llewellyn's law job theory and the challenge of the current ban on prisoners' voting. Should prisoners in the United Kingdom be granted the right to vote?