DEMOCRACY AND PUNISHMENT Chris Bennett Dept of Philosophy University of Sheffield

The Hirst Case Convicted murderer John Hirst appealed against a UK High Court decision that denying prisoners the right to vote was legal He took his case to the European Court of Human Rights, and won The EctHR judged that the UK ban on voting for prisoners contravened the European Convention on Human Rights As a party to the Convention, the UK has an obligation to abide by the judgements of ECtHR

The ECtHR judgement Article 3 of Protocol One: ‘free and fair elections’ The Court agreed that voting rights might be restricted, but only in the service of a legitimate aim and in a proportionate way ‘it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote’ ‘there was no evidence that Parliament had ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It could not be said that there was any substantive debate by members of the legislature on the continued justification, in the light of modern day penal policy and of current human rights standards, for maintaining such a general restriction on the right of prisoners to vote.’

Questions about democracy and punishment Should prisoners have the right to vote? What is the importance of the right to vote? Is it a right that can be forfeited? Who should decide fundamental questions of human rights: the European Court; British courts; or the British legislature? The role of courts v legislature in a democracy The role of national self-determination as against transnational legal institutions

Who should decide on fundamental rights? Law v. Democracy? Is it undemocratic that the European Convention constrains the decisions of elected legislatures? Is it undemocratic that unelected judges make decisions about fundamental political and human rights?

Who should decide on fundamental rights? Should democracies’ decisions about rights stand, even if they are wrong, or at least disputable? Democratic legitimacy A democratic ‘right to do wrong’?

Prisoners and the vote The basis and scope of enfranchisement ‘All affected interests’ (Goodin)? ‘No taxation without representation’? Those capable of participating in collective self-government? Forfeiting the right to vote ‘Rights are conditional on responsibilities’ Protecting democracy from corruption Forfeiture Symbolic punishment

Law v. Democracy Constitutional legal rights are: Supreme in authority Rigid/entrenched Morally loaded Abstract and general Constitutional rights are a ‘pre-commitment device;’ helping us avoid the ‘tyranny of the majority’ But how can it be democratically legitimate for one generation to tie future generations? It gives great power to judges to place their interpretation on abstract constitutional provisions.

A democratic ‘right to do wrong’? Issues where there is some right answer, but reasonable disagreement about what it is Distinguish substantive correctness from procedural fairness The fairest way to determine the answer for the group might be to give each person exactly the same say about the answer Hence the priority, or authority, of democracy in conditions of uncertainty? But in that case, democratic decision can make some actions permissible that would not otherwise have been permissible?