Papers in the Theory and Practice Human Rights Centre of Human Rights
Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
By Dr R A Watt Department of Law, University of Essex
Number 38
Papers in the Theory and Practice Human Rights Centre of Human Rights
Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
By Dr R A Watt Department of Law, University of Essex
Number 38 PAPERS IN THE THEORY AND PRACTICE OF HUMAN RIGHTS
Number 38
Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’1 in electoral law
By Dr R A Watt Department of Law, University of Essex
Human Rights Centre, University of Essex, Wivenhoe Park, Colchester CO4 3SQ, UK Tel: 00 44 1206 872558 Fax: 00 44 1206 873627 email: [email protected]
1 In her review of my book (UK Election Law: a critical examination (London; Glasshouse 2006)) to be found in 16(6) Law and Politics Book Reviews Lori Ringhand suggests that I am committed to ‘civic republicanism’ – a view of democracy in ‘which citizens and elected officials work in furtherance of some external ascertainable public good’ and that the book would ‘have been enhanced by more in depth consideration of the deeply contested nature of the very concept of “democracy” promoted here’ Ringhand is, of course, correct, but – in my own defence – that was not the point of that work-, so to do is an on-going project and this article is a further step in the exploration and defence of this conception (I use the word in the sense promoted by Ronald Dworkin) of democracy.
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ISBN 978-1-874635-43-7
Published November 2007 CONTENTS
Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
I Introduction ...... 1
II Civic Republicanism...... 3
III The History of Absent Voting, the Service Vote, and Votes for Women ...... 5
Absent Voting and the Service Vote ...... 5
1. Voting at Polling Stations and Electoral Registration ...... 6
2. The Military Vote and Absent Voting ...... 9
3. Naval and Military Voters and Conscientious Objectors ...... 13
Votes for Women ...... 15
IV Analysis and the Problem of Voting Rights for Prisoners...... 17
Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
I INTRODUCTION
The title of this article is adapted from a pamphlet2 in the famous ‘Romans’ series published by Victor Gollancz in the 1930s and ‘40s to propagate socialist ideas and ultimately to support the Labour Party in its bid to win the post-war (1945) general election. Whilst the most famous pamphlet in the series is, of course, Guilty Men by Cato (Frank Owen, Michael Foot and Peter Howard)3 some of the pamphlets bear reading today. Licinius’4 Vote Labour? Why? is, it is agreed, rather dated and may not be useful for more than it’s title, but Emanuel (Manny) Shinwell’s 1944 pamphlet When the men come home remains of interest, but here no more than its ringing dedication is quoted:
To the men and women who have saved this country and to everyone who is determined that service and sacrifice shall be rewarded with a full measure of political and economic democracy.
Shinwell was, of course dedicating his book to those who contributed to the Allied victory over Nazism, but we would do well to remember that the struggle for the popular vote – or (in Shinwell’s terms) the struggle for political and economic democracy in England and Wales – can be traced back until at least 1430.5
This article develops and refines some ideas about the nature of electoral democracy introduced by Sarah Birch and I in Remote Electronic voting: free, fair and secret?,6 in my UK Electoral Law: a critical examination,7 and expanded in a number of unpublished conference papers. Here fresh material is published which exposes a hitherto neglected facet of the debate and will, it is hoped, bring to underlying theory a step closer to maturity. The article starts with a consideration of the doctrines of ‘civic republicanism’ with which theory Ringhand has, it must now be conceded – correctly, identified me. Ringhand has also, again correctly, pointed out that I presupposed away a number of the most difficult questions in this area. This article then returns to some of the issues – in particular the history of absentee voting, and the linked development of ‘service voting’ – and shows how (at least in part) ideas of civic republicanism had a positive role to play until 2000. On the other hand the slow and reluctant enfranchisement of women provides, at least at first sight, a case study of the negative effect of the ideas of civic republicanism upon democratisation. It will be seen that the enfranchisement of women can, in fact, be fitted into a mature theory of civic republicanism. It will be argued that a properly articulated theory of civic republicanism can and does provide a sound foundation for electoral law.
The historical introduction to this article and the fact that much of its content is an analysis of earlier developments in the law and, indeed, provisions that have now been superseded is quite deliberate. Ringhand suggests it is because I prefer the certainties of some ‘idealized
2 Licinius, Vote Labour? Why? (London, V Gollancz, 1945). 3 London, V Gollancz, 1940. 4 The British Library catalogue ascribes Vote Labour? Why? to John J (Jack) Lawson, a Christian Socialist Labour MP, who sat for a constituency nearly coterminous with that recently vacated by Tony Blair, the long-time New Labour Prime Minister. This ascription is doubted. There are significant ideological and stylistic differences between A man’s life (London, Hodder and Stroughton, 1932) which was undoubtedly written by Lawson and Vote Labour? Why? Michael Foot, in a personal conversation, said that he thought that Vote Labour? Why? was written by Konni Zilliacus, a (communist) Labour MP and former League of Nations diplomat who also wrote under the name ‘Diplomaticus’… 5 See 8 Hen VI cap VII, What sort of men shall be choosers and who shall be chosen knights of the parliament. 6 (2004) 75 Political Quarterly pp 60-72. 7 Above n 1.
1 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law past to what he sees as an increasingly troubling present’. I am uncertain as to the import of the charge, but I will plead guilty to harbouring a desire that more electors should turn out to vote and take part in democratic governance. The period in which Shinwell was writing encompassed not only some of the highest turnouts in British electoral history, but also the drafting (if not the coming into effect) of the major international and regional human rights declarations and instruments, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention.8 It will be seen that some of the important legal developments date from this period of high electoral turnout and democratisation. Whilst Ringhand may charge that I am old –fashioned, she misses the point; it is not nostalgia but a wish to recapture the democratic energy of the recent past and to harness it to further the project of freedom.
However, the purpose of this article is not merely academic or theoretical; the intention is to tease out an important and often overlooked facet of Article 3 of the First Protocol to the European Convention of Human Rights that states:
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
Most of the provisions of the Convention are aimed at the protection of individual human rights (such as the right to life; freedom from torture or inhuman or degrading treatment, freedom of speech; and so forth) and it is quite clear from Hirst (No 2)9 that there is a measure of individual human rights protection embedded in the provision – Hirst was, after all, attempting to assert his individual right to vote; a point emphasised by the Grand Chamber when they observed that it was a right to vote rather than a privilege. The overwhelming bulk of the jurisprudence of the Convention is concerned with the protection of individual human rights and it is easy to fall into the trap of believing that the sole purpose of the Convention is to protect the individual against the state.10 The practical purpose of this essay is to demonstrate that the Convention can and does have other values and purposes within it; amongst these is the principle that a democratic state should be nurtured. A democratic state is, it is argued, not one which is always fearful of the judges, on behalf of the citizen, pulling the Convention from its pocket and saying ‘no, that action infringes the sovereign right of the individual’ but one which is able to develop the rights and freedoms of the citizen. There is also a further and practical purpose in mind. Hirst’s challenge to electoral law was, in essence, very simple. He contended that section 3 of the Representation of the People Act 1983 infringed his rights under Article 3 of the First Protocol. It is clear that there is a direct contradiction between that article, if it is correctly read as establishing a fundamental right and section 3 of the Act that reads:
3.--(1) 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 detained is legally incapable of voting at any parliamentary or local government election.
(2) For this purpose-- (a) "convicted person" means any person found guilty of an offence (whether under the law of the United Kingdom or not), including a person found guilty by a court- martial under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act
8 Summarised in Watt, n 1 above at pp 48-50. 9 Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 (Application no 74025/01). 10 Or, given the extension of the so-called horizontal jurisprudence of the Convention, against other powerful actors. See the debate initiated by Hunt, M in ‘The "horizontal effect" of the Human Rights Act’, 1998 Public Law 423.
2 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
1957 or on a summary trial under section 49 of the Naval Discipline Act 1957, or by a Standing Civilian Court established under the Armed Forces Act 1976, but not including a person dealt with by committal or other summary process for contempt of court; and (b) "penal institution" means an institution to which the Prison Act 1952, the Prisons (Scotland) Act 1952 or the Prison Act (Northern Ireland) 1953 applies; and (c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence, whether or not the sentence provided for detention in the event of default, but a person detained by virtue of a conditional pardon in respect of an offence shall be treated as detained in pursuance of his sentence for the offence.
(3) It is immaterial for the purposes of this section whether a conviction or sentence was before or after the passing of this Act.
It is also sufficient for our purposes to note that Hirst succeeded in his action in so far as the Grand Chamber of European Court of Human Rights held that UK electoral law fails to comply with the Convention because it denies to all convicted prisoners the right to vote irrespective of the nature or gravity of their crimes or the length of their sentence, the government has instituted a review of the law.11
It seems that there is little official enthusiasm for reform because the review process has already lasted a long time and ‘it appears that the voting rights of convicted prisoners will be occupying governments and courts for some time to come’.12 Sooner or later however the law will be reformed and, whilst it is clear that there is a considerable margin of appreciation for compliance with the Convention,13 it is beyond doubt that challenges to the reformed law will follow. This is because it would appear that it is likely that the law will either be reformed to allow prisoners sentenced to less than a specified term to retain their vote or for the sentencing court to make a specific order regarding loss or retention of the franchise. Given that some countries do permit prisoners to vote without restriction14 Mr Hirst will almost certainly return to the courts. Cynics might argue that many of the challenges to the law following the decision in Hirst have been brought merely for the purpose of gaining compensation but there remains an important question of principle. To what extent, if at all,
11 For a document setting out the options under consideration by the Government see Voting Rights of Convicted Prisoners Detained within the United Kingdom (Consultation Paper, CP29/06). It must be noted that a full repeal of the ban is not amongst those options. 12 See Smith v Scott [2007] CSIH 9 for a chronology up to May 2007. The quotation is from Kesby’s brief but helpful Note ‘Prisoner voting rights and the effect of Hirst (No 2) on national law’, (2007) Cambridge Law Journal 258-259. 13 See Mathieu- Mohin v Belgium (1987) 10 EHRR 1. 14 Prisoners may vote in 16 countries: Albania, Bosnia and Herzegovina (unless serving a sentence imposed by the International Tribunal for the former Yugoslavia), Cyprus (though they not be in prison on the day of the election) Croatia, the Czech Republic, Denmark, Finland, the former Yugoslav Republic of Macedonia, Iceland, Lithuania, Portugal, Slovenia, Spain, Sweden, Switzerland and Ukraine. Some prisoners may vote in 13 countries: Austria, Belgium, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Norway, Poland, Romania and Turkey. Prisoners cannot vote in 13 countries: Armenia, Azerbaijan, Bulgaria, Estonia, Georgia, Hungary, Ireland, Latvia, Liechtenstein, Moldova, Russia, Slovakia and the United Kingdom.
3 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law should those who have offended against society, be permitted to participate in its governance? This question is addressed in this essay.
II CIVIC REPUBLICANISM
The central idea of ‘civic republicanism’ is public identification and engagement with an identifiable common good. One conception of the ‘common good’ is that the people accept some restriction upon their lives – such as the direction of labour15 or rationing of goods – in the common interest of the pursuit of some collective or social target. Modern, well-informed populations are alive to the wide-range of possibilities and opportunities open to each of them as individuals and this is likely to militate against the adoption of a substantive common good in the majority of circumstances. Citizens presented with a choice of opportunities or goods are likely to become first resentful and then rebellious if they are obliged to adopt a good or goal because of another’s choice or even as a result of some more democratic decision. The most likely circumstances in which people would accept that their own plans be subsumed to some national or community plan are those of war, national emergency or natural disaster. This may explain in part some obvious features of civic republicanism remarked upon by Iseult Honohan.16 Civic republicanism was more prevalent and acceptable in the past and in small political units, which seem to be more prone to both wars and, because of the lack of social buffering, good housing, hygiene facilities and infrastructure, natural disaster. Moreover, the widespread and frequent occurrence of wars in such societies can only have led to the observed linkage between civic republicanism and militarism17 because the presence or threat of some external enemy must acts as a powerful impetus and incentive to value martial prowess and military virtues.
However, Honohan points out that the collective striving for this common good does not necessarily mean that individual goods and individual plans of life are sacrificed for some common public project or overarching and all-encompassing conception of ‘the good life’. It may be that the common good consists in the ‘ensemble of conditions for individual goods’18 or as a ‘framing common good’,19 in other words – a political system which is, in itself good, precisely because it provides the necessary, but not sufficient, conditions for success in socially determined and thus socially defined pursuits and activities.20
One can interpret this in a number of ways; for example one could take the view that by participating in the working, familiar and social life of the community, one lives out the conditions which contribute to the general conditions necessary for others to live a good life. One might say, eg, “I am a university lecturer, husband, father, amateur runner and I contribute to this education system, marriage, family, sports club in a number of defined
15 See, for example, the Defence (General) Regulations 1939 esp Reg 58A - which rather went against the broad principle of voluntary service contained in the Emergency Powers (Defence) Act 1939; however, the Emergency Powers (Defence) Act 1940 introduced a general power, by Order in Council, to require persons to place themselves, their services and their property at the disposal of His Majesty as appear to him to be necessary or expedient for securing the public safety. For discussion see, Cooper, M, An outline of industrial law (London, Stevens, 1954) p 326. I take it that ‘the public safety’ is, in wartime, a paradigmatic common good. 16 Honohan, I, Civic Republicanism (London, Routledge, 2002). 17 Honohan n 16, pp 166-7. 18 Honohan n 16, p 151. 19 Honohan n 16, p 156 reference to Raz, ‘Rights and Politics’, (1995) 71 Indiana Law Review 22-44 at p 37. 20 See Honohan n 16, p 153 quoting Raz. Note that I have slightly but, I think significantly altered Raz’s words because I want to develop the point. I do not know whether Raz would accept the amendment.
4 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law ways.” As Sandel says ‘I could …take pride in my fitness to contribute in this way, and this fitness, perhaps even more than the benefits I might glean, would be just cause for celebration’.21 Sandel’s views seem extremely attractive and I am sure that many of us have a worldview consistent with that which he expresses. However, there is no need to adopt such a ‘thick’, almost substantive view, one could take a much thinner view which depends upon a political commitment to a democratic way of life.
Such a political commitment, which has been termed democratic in earlier writing, is a commitment to ‘government by the people’. It is important to emphasise that all the words in this short phrase are weighty. Here ‘government’ means both the structure and function of governing; as the dictionary says, ‘ruling with authority, (to) conduct the policy, actions and affairs of the polity’. ‘By the people’ means that the citizenry are the supreme political authority of the state, and it must be that the ‘people’ do, in fact rule through, in a large modern state, representative structures which exist under the control of and subject to recall by, the people. This must be contrasted with that which, in earlier writings, has been called the market model. Here it is argued, the citizenry pass over their right and duty to govern themselves to political parties which, when elected, govern in their stead. This falls short of ‘democracy’ in the sense that it is not ‘government by the people’; it is government by an elected aristocracy. It is also important to note that it is a political commitment that is required – a willingness to go beyond the ties, which are personal – in the sense of being emotional or contractual – to recognise that human society is, at least, a distributive community. A political commitment is one in which one recognises one’s duty to members of the political community as a whole.22
To ‘close the circle’ then, and describe precisely what is meant by democratic government in this model is simple. The normative (‘civic republican’) model demands a political system in which the necessary, but not sufficient, conditions for success within the society are made available by the state. One of the conditions of being a citizen of a democracy is that one takes one’s place in governance; which is to say, by one’s efforts contributes to the realisation of a way of life in which one can take pride. This definition is, of course, ‘nearly circular’23 in that it explains how the words are used. A voter can take pride in both being fit to take part in governance and, in fact, taking part in governance (by voting) and thus contributing to a democratic way of life.
This reciprocity - the support of the citizen for the state and of the state for the citizen - is an important feature of civic republicanism that needs to be developed and the discussion of electoral law that follows is intended to accomplish that task.
III THE HISTORY OF ABSENT VOTING, THE SERVICE VOTE AND VOTES FOR WOMEN
In this section of the article some aspects of three matters will be considered – absent voting, the right of women to vote and the granting of a special military service vote. These matters will be considered together because, it is argued, they all point to one end. Furthermore, the legislation which introduced, say, the right of women aged over 30 to vote in Parliamentary elections (the Representation of the People Act 1918) also introduced some changes to the
21 Sandel, M, Liberalism and the limits of justice (Cambridge, CUP, 1982) p 143. 22 See Walzer, M, Spheres of Justice (Oxford; Blackwell, 1983). Especially chp 1, at p 28 Walzer writes ‘Nevertheless, the political community is probably the closest we can come to a world of common meanings. Language, history and culture come together (come more closely together here than anywhere else) to produce a collective consciousness.’ 23 Not that there is anything wrong with that – see for a celebrated precedent William, G’s nearly circular definition of a crime in Textbook of Criminal Law (2 ed) (London, Stevens, 1983) at pp 27-29.
5 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law provisions for service voters and changed the arrangements for proxy voting. Finally, it must be noted that many of the provisions for absent voting, (it could, for example, be argued that those which subsisted from 1918 until 2000) were originally introduced to accommodate the needs of service voters, and so absent voting and service voting should be taken together. The discussion then should begin here.
Absent Voting and the Service Vote
Before we can understand the underpinnings of the right of an elector to vote other than in person at a polling station we need to know how the right developed. This history is recounted here, but it is not a simple ‘events and dates’ history for some of the underlying themes stem from much earlier developments in electoral law.
1. Voting at Polling Stations and Electoral Registration
It is well known that prior to 1872 voting in statutory elections took place by means of a ‘head count’ (hence the word ‘poll’); voters (ie men who satisfied the property qualification)24 voted in person either by simple show of hands or in a ballot. Ballots were not generally secret but were accomplished by the voters’ names being taken by a poll clerk and their vote being recorded against their name. Clearly votes had to be cast in person. All voters had to attend at a polling station in order to cast their vote in a ballot box. There was no provision for any form of absentee ballot. Men25 who could not personally mark the ballot paper because of a disability, or illiteracy, or religious observance could ask the presiding officer at the polling station to cast the ballot for them in the presence of the candidates’ agents.26
It is quite clear that the pre- and post- 1872 obligations to attend the poll in person had a number of important functions; personation and double voting would be impossible, but prior to the introduction of the secret ballot corruption and intimidation would be facilitated. The period 1832-1872 (and indeed, but at a reduced and reducing level, up to 1885) was characterised by widespread corruption.27 However, reported electoral corruption, in the form of vote-buying by means of cash payments (bribery28) the provision of food or drink
24 At this time still the forty shilling franchise established in 1430 for county voters and whatever form of property qualification applied in the particular borough of residence for borough voters. 25 See below for a discussion of the extension of the franchise to women. 26 See Ballot Act 1872 Schedule 1 (Rules for Parliamentary Elections) Rule 27. 27 For a passing judicial note of the history see Lord Denning, MR in Morgan v Simpson [1974] 3 All ER 722, 725h-726c. For trenchant criticism of the view (endorsed in Morgan v Simpson) that the fictional Eatanswill election described in Dickens’ The Pickwick Papers should be seen as typical of pre-1832 elections, see Marwick, A, The nature of history (London, Macmillan, 2nd ed, 1984) p 148, in which he points out that Dickens erred on the side of understatement. Perhaps a more realistic view is set out in chapter 48 of Tressell, R, The ragged-trousered philanthropists (London, Panther, 1965). Tressell was an observer of, and participant in, election campaigns in the first decade of the 20th century. For a full account see Seymour, C, Electoral reform in England and Wales: the development and operation of the parliamentary franchise 1832-1885 (New Haven, Yale Univ Press, 1915) especially at pp 171-178. See, for an illustration of egregious corruption the provisions of An Act to suspend for a limited period, on account of Corrupt Practices, the holding of an Election of a Member or members to serve in Parliament for certain cities and boroughs 1882, 45& 46 Vict Ch 68. 28 See, for the modern provisions, s 113 Representation of the People act 1983.
6 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
(treating29) and the exercise of undue influence30 such as intimidation had almost died out by the end of the 1914-18 war.
Honohan refers31 to voting as ‘possibly, though decreasingly’ one of those activities (along with obeying the law and paying taxes) which citizens typically recognise as a duty. There has never been a legal obligation to vote in Britain; but in 1998 four-fifths of those aged over 65 felt that 'everyone has an obligation to vote'.32 Clearly the sense of civic obligation is decreasing and it is the task of so-minded political scientists and sociologists to determine the reasons. Psephologists have pointed to the fact that there has been a long-term decline in electoral turnout in Britain33 and there may be a number of reasons for this phenomenon.34 Two types of explanation have been advanced to explain the decline in turnout; ‘rational choice theories’ which posit that voting is not a very efficient or effective behaviour in securing political action35 and ‘norm-based’ theories which suggest the people do not vote simply because the social norm that voting is a duty is collapsing. Rational choice theorists suggest that variations in the incentive to vote can explain changes in turnout and may also help account for the decline in turnout. Put quite simply voters are increasingly aware of the unimportance of their vote and staying at home. Norm based theories, on the other hand, point to the declining importance of civic duty. As Keaney and Rogers point out the ‘rational choice’ theories founder upon three important obstacles. Firstly, provided that some people vote (or a parliament will always be elected) it can only be more efficient to vote than to decline to vote since some (small) voice in an election is always louder than no voice at all. Secondly, rational choice theory fails to explain why so many people do vote; if it was truly rational not to vote one would expect even less people to turn out. Thirdly, the pattern of withdrawal from voting does not, at least in the eyes of Keaney and Rogers, support the idea that a rational choice is being exercised. Keaney and Rogers point out that voting remains higher amongst the most highly educated and one would expect the most highly educated to exercise the most rational choices. This, faintly patronising, view is easy (at least in theory) to refute – perhaps ‘the less well educated’ are only too well aware that government of whatever flavour never acts in their best interest. However, that having been said, the decline of the civic value of voting is clear.
One piece of evidence may give cause to doubt the rational choice hypothesis and give support to the civic norm theory as well as suggesting one mechanism whereby it could work is in the area of working hours. In the 1870 and 80s electoral turnout in parliamentary elections, the franchise being restricted to males possessing the necessary property qualification, was typically in the region of 70-80% whilst the average working year was 2744 hours,36 which is roughly equivalent to a 53 hour working week allowing for the minimal holidays which were available at that time. Working days consisting of ten hours were the norm for factory workers and, whilst some elections were held on Saturdays,37
29 Section 114 RPA 1983. 30 Section 115 RPA 1983 as amended by the Electoral Administration Act 2006. 31 Honohan n 16, p 149. 32 This could be compared with the fact that only one third of 18-4 year olds agreed with this statement whilst only one quarter of the cohort actually voted. Office of National statistics Social Attitudes Survey 1998; see
7 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law likewise many people also worked on Saturdays. Given that free time was restricted and voters were faced with procedural obstructions to voting it would seem highly rational not to turn out. Nonetheless turnouts were high. Whilst it is now impossible to conduct the experiment to prove or disprove the point, it is surely not too far-fetched to claim that workplace conversations amongst men had an effect in keeping turnouts high – the social norm set by the conversation which started by the non-political question: ‘what did you do after work?’ is, if answered by ‘I went down and voted’ is likely to be powerful. One might say that the convention (and this has to be seen in the light of the times) that ‘real men vote’. ‘Real men’ being those over 21 who were sufficiently well off to satisfy the financial constraints.38 To say that one did not vote would be to cast oneself into the unenviable position of being impecunious or otherwise un-enfranchised (like a woman) or, still worse, disenfranchised. Given that boys typically entered the workforce in their early teens one can also see the social pressure to become a voter-perhaps drinking, smoking and voting were badges of manhood. Clearly some aspects of this explanation are deeply unattractive; sexism, ageism, drunkenness and a willingness to develop lung cancer are hardly (modern) virtues. However, the fact that some members of a social group in the 1870s would remember the time before enfranchisement or the Chartist struggle to secure the vote and the political value of the vote make the informal workplace social group a valuable melting pot. Neither should we forget Joseph Raz’s valuable insight that social values are culturally determined, interlinked and self-sustaining.39 We ought to be able to expect socialisation to play some part in the development of a voting culture, indeed the entire behaviouralist40 approach to political science could be founded upon the central dogma41 that socialisation makes political culture makes political output.
Perhaps the public voting culture grew from, taken together, informal social relations such as the hypothetical exchange outlined above, leavened by ‘real political’ contributions by voting activists (such as the Chartists),42 the blandishments of political candidates and the writings of, eg, John Stuart Mill.43 Clearly the most important social practice which sustains the value of voting – why people value voting – is, of course the fact that ‘something happens’ consequent upon an election having taken place. An obvious list of consequences of an election is as follows: MPs are returned changed or unchanged; the composition of the House of Commons is renewed; the government is maintained or replaced; public policies continue in their course or are diverted to follow new priorities.
However, it could also be argued that the operation of election law (an output of the political process) makes the point that the central dogma operates in reverse44 - political outputs influence political culture and therefore political socialisation. If people are obliged to act in a particular way, they rationalise their behaviour by buttressing it with social and moral practices. Marxist scholars in particular have observed that law is not only a means for enforcing compliance with a particular practice, it is an educative or socialising force; the values contained in the law are held up as morally just values. Perhaps this is the case irrespective of the actual moral rectitude of the values; no doubt practising Nazis or
38 See, for an outline of the development of the franchise and its extension to progressively less well- off men, (and, for the local government franchise, some women) Seymour, above n 27 and the Acts of 1832, 1867 and 1884. I have provided a summary in Watt n1 above at pp 40-41. 39 See, generally, The Practice of Value (Oxford, Clarendon, 2003). 40 See, as a seminal textbook, Kavanagh, D, Political Science and Political Behaviour (London, George Allen and Unwin, 1983). 41 Cf the ‘central dogma’ of molecular biology ‘DNA makes RNA makes protein’ (the so-called ‘Watson-Crick hypothesis’ see Watson, JD, The Double Helix (New York, Atheneum, 1968). 42 See the brief discussion in Watt n 1 above at p 40. 43 Considerations on Representative Government (New York, Prometheus Books, 1991). 44 Incidentally, long familiar to modern molecular biologist, see Lehninger, Biochemistry (London, Worth, 1976) p 916.
8 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law discriminating white citizens of the apartheid state of South Africa saw the values encapsulated in their legal systems as good. Honoré, in dealing with much less perverse systems of morality,45 points out that the most important functions of the law are in allowing us to fulfil, or better to fulfil, our moral obligations. Electoral law ought then to aid us to fulfil our moral obligation to be self-governing members of a free and self-governing society.
Voting in person at a polling station implies, of course, that voters have such a polling station to attend. In early times when voters were relatively few there was only one polling station and the whole election was conducted in that place. If the polling station was beyond the voter’s travelling distance he was simply and effectively disenfranchised.46 There was no need for a register of electors because electors were generally known to one another. As the number of voters grew – especially in the counties, borough electorates were usually small - informal systems of electoral registration grew up from the mid-eighteenth century.47
In 1788, an Act (28 Geo III, c36) established a national system of electoral registration but so many complaints ensued from the operation of the overly elaborate and apparently cumbersome system that it was repealed in the following year. The Great Reform Act of 183248 introduced a national system of electoral registration, which Seymour noted in 1915 ‘forms essentially the basis of electoral representation as it operates in England today’.49 It could well be added that the essential features of electoral registration introduced in 1832 would be quite familiar to an electoral registration officer working at any time up to the passage of the Representation of the People Act 2000. The essential feature of the 1832 Act being that in order to vote a man had to be registered as living within the electoral area. In 1832 there were, of course, two distinct types of parliamentary franchise – the county franchise being exercised by all those who owned land of sufficient value that it could, if so desired be leased out at 40 shillings per annum and the borough franchise possessed by the variously qualified voters of chartered boroughs. This separation of the franchises was maintained in the Parliamentary and Municipal Registration Act 1878 (41 Vict Ch 26) but the two franchises were assimilated in the Representation of the People Act 1884 (48 Vict Ch 3), the important provisions being contained in ss 2, 3 and 5 where the act provides that, in order to vote, a otherwise qualified man had to inhabit or occupy the premises. This provision was repeated and clarified by the Registration Act 1885 (49 Vict Ch 15) where, in the Second Schedule, the words ‘inhabitant’ and ‘actual occupier’ are used in paragraphs 7 and 8 to describe a man eligible for registration as an elector.
2. The Military Vote and Absent Voting
45 See Honoré, T, ‘The dependence of law upon morality’, (1993) 13 Oxford Journal of Legal Studies 1-17. It should however be noted that Honoré has a valuable discussion of the Nazi legal theorist Schmidt’s work in his paper. 46 For a modern, transatlantic, example of the effect of geography upon an election result see the Florida ‘hanging chads’ controversy litigated in Bush v Gore 531 US 98 (2000). The result of the 2000 US presidential election was contested in Florida where the result was close and depended upon the exact number of votes cast for each candidate in a number of State counties. There were two obstacles to recounting – the first was the extent of damage done to the voting papers by repeated handling – the ‘chads’ or pre-punched discs which were removed when a vote was cast for a candidate became loosened by repeated handling. The second, and crucial, reason was that the Florida State Constitution required that the counting and any subsequent recounts be completed by a fixed date such that the results of the popular vote could be delivered on horseback to the State members of the Electoral College in Washington DC. 47 See Seymour, above n 27 pp 105-106. 48 An Act to amend the Representation of the People in England and Wales, 2 Geo IV, ch 45. 49 Seymour, above n 27, p 108.
9 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
Clearly military personnel are going to have considerable difficulties in being registered as voters, especially if they are on service overseas. However, before we can examine this part of the story we need to consider a number of features of military involvement in politics in Britain. Nowadays when we hear of military involvement in politics the phrases ‘military dictatorship, military coup, emergency powers and suspension of elections’ come to mind. However, it must be recalled that in the seventeenth century the victorious group in parliament feared the military not because they wished to expunge democracy but because they wished to extend it beyond the limits favoured by the landowners.50 It is also well known that the seventh clause of the Bill of Rights 1689 prohibited the raising or keeping a standing army within the kingdom in time of peace without the consent of parliament. Certainly parliament feared that the army might intervene in politics at the time of the Jacobite rising because An Act for regulating the quartering of Soldiers during the time of the Elections of Members to serve in Parliament (8 G 2 c30) was passed in 1745 removing all soldiers quartered or billeted in any town or city to a place two miles outside during any election period. This Act remained in force until 1847 when, because of the expense of removing the soldiers they were confined to barracks on nomination day and polling day except for the purposes of the changing of the guard and for individual soldiers to vote. Section I of the Act to regulate the Stations of Soldiers during Parliamentary Elections (10 Vict Cap 21) provides that:
…(N)o Soldier within Two Miles of any City, Borough, Town or Place where such Nomination or Election shall be declared or Poll taken shall be allowed to go out of the Barrack or Quarters in which he is stationed unless for the Purpose of mounting or relieving Guard, or for giving his Vote at such Election; and that every Soldier allowed to go out for any such Purpose within the Limits aforesaid shall return to his Barrack or Quarters with all convenient Speed as soon as his Guard shall have been relieved or Vote tendered.
This provision remained in force until 16 April 1919, though it is quite clear that it had fallen into disuse before that time because the Parliamentary Elections (Soldiers) Act 1919 repealed the 1847 Act with effect from 10 December 1918, some four days before the 1918 General Election. This seems to be one of the few examples of retrospective legislation legitimising an otherwise unlawful act. Given that a soldier who breached the terms of the 1745 or 1847 acts would, presumably, be absent without leave and thus subject to serious penalties the point is not trivial.
If soldiers were posted to a fresh garrison in Britain or sent to serve overseas they simply lost their votes until the compilation of the next Electoral Register for which they qualified. However, in 1900 the law was subject to a radical amendment whereby soldiers fighting in the South African War were permitted51 to retain their electoral qualification which would otherwise have lapsed because of their absence on war service, but there was no provision whereby they could vote whilst overseas or appoint a proxy. The provisions were, for the time, generous (but perhaps surprising to modern readers) in that a voter normally lost his registration if his household failed to pay the Poor Rate or qualified for Poor Relief but the Act provided that the registration would not be lost simply because his wife or children received Poor Relief.
Some inroads into the principle that votes could be cast other than in person began to be made at the end of the 1914-18 War. In general terms there was little change in electoral law during
50 See the reports of the debates of the General Council of the Army of 29 October 1647 in Sharp, A, The English Levellers (Cambridge, CUP, 1998) at pp 102-130. 51 Electoral Disabilities (Military Service) Removal Act 1900, repealed by the Statute Law Reform Act 1908.
10 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law the first three years of the war, although on 7 August 1914,52 some three days into hostilities, the Electoral Disabilities (Naval and Military Service) Removal Act 1914 was passed expressly to have effect only ‘during the continuance of the present war in Europe’. This Act was drafted in terms almost identical to the 1900 Act. During the course of the war there were a number of Parliament and Local Elections Acts (1915, two Acts in 1916, two Acts in 1917 and an Act in 1918) prolonging the term of the Westminster Parliament (set at 5 years by the Parliament Act 1911) and extending the periods of office of local councillors and aldermen. The Elections and Registration Act 1915 as subsequently amended prolonged the life of the general Electoral Registers although in 1916 permission was given for the preparation of a new general Register or special Registers.
Without doubt the most important piece of electoral legislation passed during this period was the Representation of the People Act 1918 of 6 February 1918. The 1918 Act accomplished a number of projects. Most famously it extended the Parliamentary franchise to all women aged 30 or over. It swept away the property restriction imposed upon male electors in 1429-30. It contained a provision whereby men serving or having served in the armed forces on war service gained the vote at 19 rather than at 21. It disenfranchised certain conscientious objectors. It introduced, for the first time, a restricted provision for proxy voting. Orders in Council also permitted some overseas voting in person or by proxy. All of these provisions are important and many of them will be examined in detail starting with the provisions for voting by proxy.
The provisions for proxy voting were first introduced for men who had, in some way, been engaged in war service. Section 5 of the Act defines a naval or military voter as a person who is serving on full pay,53 or is abroad or afloat in connection with war service of a military character, or is a civil servant based in Britain but sent overseas, or is a merchant seaman, pilot or fisherman, or is serving with the Red Cross (or the order of St John of Jerusalem) or is engaged in other work of national importance in connection with the war. Such people were allowed to register in the constituency or other electoral division in which they would have lived but for their war work as ‘absent voters’ and were permitted by s 24, Schedule One (paras 16-19) and Schedule Three of the Act to appoint a proxy who could cast the vote in their stead. Paragraphs 4 and 5 of the Third Schedule demonstrate just how restricted the provisions were made. Firstly the provisions as to appointing a proxy were restricted to the duration of the war or for one year thereafter and secondly the proxy had to be either a close family member of the absent voter or another parliamentary elector in the constituency. Clearly the right to appoint a proxy was designed as a special privilege for those who had served their country.
The provisions for proxy voting lapsed one year after the end of the war and they were not renewed until the outbreak of the Second World War. The legislation drawn up during the 1939-45 wartime period is piecemeal and was designed to deal with particular electoral circumstances as they arose. Accordingly, it is unnecessary to go through the individual pieces of legislation. The Representation of the People Act 1945 (RPA 1945) provided in Part IV Temporary Provisions as to Voting the most extensive set of wartime measures.
Section 32(1) RPA 1945 made postal votes available to voters overseas on war service in the event of a general election within the period 1 April 1945 – 31 December 1945.54 The most
52 The precise dates of some of the wartime legislation are important because of the momentous changes introduced, the signing of the Armistice on 11 November 1918 and the General Election on 14 December. At least the Members of Parliament were ‘home for Christmas’. 53 And thus not under sentence for some military crime or misdemeanour, see for the modern provision s 3(2)(a) Representation of the People Act 1983 reproduced above. 54 Provision was made for the extension of that period. The date of Royal Assent was 15 February 1945.
11 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law important provisions are to be found in s 25 of the 1945 Act. A person whose name appeared in the service electoral registers would, provided he (or, more rarely, she) had made an application, be entitled to vote by post if (and only if) he was in one of the designated postal voting areas. These areas were designated by speedily made Regulations and included military establishments and ships in all the theatres of war.55 The dilution of the 1872 principle of personal voting may readily be explained, in a similar fashion to the 1900 and 1918 provisions, by the obvious political fact that it would be unacceptable to exclude those physically engaged in the battle for democracy from the democratic process. Again it is clear that the service voter is being granted a privilege denied to most other citizens on account of the fact that he is subsuming his own interests in the light of the national interest.
A more general provision was made for postal voting in the Representation of the People Act 1948 (RPA 1948). This Act provided the first permanent substantive amendment to the method of voting set out in the Ballot Act 1872 and, since the provisions continued in force until 2000, they need to be explained.
Section 8(1) RPA 1948 provided that all voters in a parliamentary election56 should cast their ballot in person at the polling station allotted to them unless they fell into one of the special categories set out in the section. Members of these special categories were entitled to apply for a proxy or postal vote. There were two general categories of voters entitled to vote by proxy or by post. Firstly, in regard to service voters,57 the provisions of the 1945 Act were carried forward to allow them and service voters to vote by post or by proxy and this was extended to reservists.58 Clearly the justification for granting absentee voting rights to serving and reserve service military personnel remained unchanged from that advanced to explain the provisions of the 1945 Act.
The second general category was much wider and contained four distinct types of voter who were given the right to vote by post or proxy. Firstly, official (rather than party) election workers, such as returning officers or poll clerks, were permitted to exercise a remote ballot;59 this subcategory was also extended to include police constables on election duty.60 Secondly, and only at a general election, a candidate in a distant constituency could, together with their spouse, vote by post or proxy in their home constituency.61 Again the exceptions to the general rule may be explained by saying that those serving the democratic process (in this case by acting as electoral officials or as a candidate) should not be disenfranchised for performing a public or democratic duty. The third subcategory of voters included those unable to vote in person at the polling station to which they were allocated because of the nature of their employment,62 those who would be obliged to make a journey by air or sea from the address at which they were qualified to vote in order to cast their ballot63 and those, because they had moved house in the very recent past, who no longer lived at the address in
55 For the slightly quaint yet highly evocative Forms of Declaration needed to obtain a postal vote, see Schedule 1 of the 1945 Act. 56 Similar provisions were made in respect of local government electors by ss 25-27 of the 1948 Act. However the provisions for local government elections were slightly wider than for the parliamentary franchise in that postal votes were made available to qualified voters under s 27. 57 Representation of the People Act 1948 s 8(1)(a). 58 RPA 1948 s 8(1)(b)(ii). War veterans were transferred to the reserve forces upon discharge and the National Service Act 1948 placed a similar obligation upon time served national servicemen. Members of the reserve forces remained liable to call-up and to annual training. 59 RPA 1948 s 8(1)(b)(iii), (v), (vi). 60 RPA 1948 s 8(1)(b)(iii). 61 RPA 1948 s 8(1)(b)(iv). 62RPA 1948 s 8(1)(b)(i). 63 RPA 1948 s 8(1)(c). Newsreels of the 1950s general elections were enlivened by footage of ballot boxes being rushed from remote Scottish islands to the count by helicopter and police car.
12 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law respect of which they were qualified to vote.64 The final group of people entitled to vote by post were those who were afflicted by some form of physical (my emphasis) disability such as blindness who would thereby find it difficult to vote in person at the polling station. This group were specially recognised in the original 1872 legislation where it was provided that they should be given help in voting at the polling station. Many of those living with disabilities were wounded during war service – indeed the first legislation dealing with the rights of disabled people was a wartime Act – the Disabled Persons Act 1944 – which was specifically intended to grant rights to those disabled by war service.
It may be seen from this survey that the predominant reason for allowing a person to exercise the franchise away from the polling station was the fact that they were engaged in some other aspect of the democratic process that prevented them from voting. This could be military or other public service or direct engagement in electoral politics.
For the sake of completeness we need to bring the story up to date. The basic scheme introduced by the 1948 Act continued in force until 2000. Following the election of the Labour government in 1997 that announced itself as committed to constitutional reform a review of electoral matters chaired by George Howarth MP was instituted. This body composed of parliamentarians, civil servants and electoral administrators recommended a number of important technical amendments to voting law. These amendments which also included a reform of the electoral registration procedures and timetable were incorporated into one of the two major reforming measures of 2000- the Representation of the People Act 2000 (RPA 2000) and the Political parties Elections and Referendums Act 2000 (PPERA 2000). PPERA 2000 is an important piece of legislation, not least because it introduced a measure of public accountability into party finances and gave birth to the Electoral Commission, however its measures are beyond the scope of the present work.
The RPA 2000 introduced the concept of postal votes upon demand. As we have seen prior to 2000 a person wishing to vote by post had to apply for a postal vote (or to be permitted to use a proxy) at each election and had to give a reason for being allowed to cast the ballot in absentia. By s 12 and Schedule 4 RPA 2000 the earlier provisions were superseded and any person could apply for and be granted a postal vote for an indefinite time without having to fulfil any of the restrictions contained in the earlier Acts. Further details of the provisions were contained in the Representation of the People (England and Wales) Regulations 2001 SI 2001/341.
Following the extensive electoral fraud in the Birmingham City Council elections of 10 June 200465 the provisions for the regulation of postal voting were tightened by the Electoral Administration Act 2006. Sections 14 and 40 provide, respectively, strict rules for the registration of postal voters and for the avoidance and punishment of offences relating to postal voting.
It is quite plain that the RPA 2000 marked the end of the civic republican ideal in so far as absent voting was concerned. Postal votes could be obtained on demand and large numbers of electors availed themselves of the opportunity to vote from home. One would expect that if people were able to vote from home that electoral turnout would increase, but the opposite gross effect has been observed. It has to be observed that the general trend in election turnout over the period of deregulation of voting behaviour has been downwards. The 2005 general election turnout was 61.3%; this was some 2% higher than the nadir recorded in 2001 when
64 RPA 1948 s 8(1)(d). 65 In the matter of a Local Government Election for the Bordesley Green Ward of the Birmingham City Council held on 10 June 2004 and In the matter of a Local Government Election for the Aston Ward of the Birmingham City Council held on 10 June 2004. Election Court (unreported) Commissioner Mawrey QC presiding.
13 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law the overall voter turnout was the lowest recorded for a Westminster Parliament election since the advent of universal adult suffrage. Only 59.4 % of the 44,403,238 registered voters eligible to vote in the 2001 general election chose to exercise that right. The figure for 1997 was 71.4%.66 If this is compared with the turnout of 83.6% in 1950 it is clear why elected politicians are concerned for their democratic legitimacy. Whilst the 1950 turnout was exceptionally high it is worth noting that the mean turnout in General Elections taken over the period 1834 – 1998 was 72.62%. In the 20th century the mean turnout was 75.72%.
3. Naval and Military Voters and Conscientious Objector
We need to return again to the First World War and the provisions of the Representation of the people act 1918. It will be recalled that section 5 of the Act introduced a class of ‘naval and military voters’; it also, as we shall see, made important changes to the electoral status of conscientious objectors. Naval or military voters were service personnel or people facing similar military or marine dangers, they were also defined (in the sense of ‘picked out’) by their age. Sailors and soldiers were to be permitted to vote at nineteen years of age rather than the customary twenty-one.67 Section 5(4) of the 1918 Act provided that: A male naval or military voter who has served or hereafter serves in or in connection with the present war hall, notwithstanding anything in this or any other Act, be entitled to be registered as a parliamentary elector if that voter had attained or, during service attains, the age of nineteen years and is otherwise qualified.
This provision was clarified by the Representation of the People Act 1920,68 the one substantive section of which must be quoted in full:
For the removal of doubts, it is hereby declared that - (a) a person who, by virtue of section five of the Representation of the people act, 1918, has at any time become entitled, as a male naval or military voter serving or having served in or in connection with the war, to be registered as a parliamentary elector before attaining full age, continues to be entitled, if otherwise qualified, to be registered as a parliamentary elector before attaining full age, notwithstanding that the service which brings him within the provisions of that section has ceased; and (b) the expression “service” in the said subsection (4) means service in or in connection with the war. At a time when most men could not vote until they had passed their 21st birthday (and women could not vote until they had passed their 30th birthday) this is plainly a radical provision allowing military voters to cast the ballot after their nineteenth birthday. The point made in the 1920 legislation is even more radical. It meant that a young man who passed their nineteenth birthday after 2nd July 1920 could, provided that he had been engaged in war service, register to vote. This would, of course, mean that he had been in the forces at the age of, at most, seventeen.
66 See Election 2001: The Official Result available on
14 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
Service voting provisions subsist to this day but they are generally concerned with the mechanics of allowing personnel based overseas to vote. The provisions seem to be designed to bring the standards applied to service voters up to the same standard as that enjoyed by the rest of the population.69
We need to contrast this favourable electoral treatment with that handed out to conscientious objectors. Section 9(2) of the 1918 Act disenfranchised conscientious objectors ‘during the continuance of the war and a period of five years thereafter’ unless they had qualified as a ‘naval or military voter’ (as, for example, a merchant seaman or fisherman) or had been engaged in work of national importance and could convince the Central Tribunal set up under the Military Service Act 1916 of that fact. It is plain from subsection 9(2)(i) that the provision was designed to apply to those who had lawfully been excused from military service by the Tribunal. This is a clear case of a retrospective penalty being imposed upon objectors. An objector could successfully apply for exemption in late 1916 expecting to be able to vote at the end of the war and then find himself deprived of it in February 1918. The particulars of the provision could mean that a ‘conshie’ could be disenfranchised up to and including mid 1924 because the Treaty of Versailles, which ended the war, was not signed until the end of June 1919 whereupon it was ratified by parliament.
Again it is clear that some form of military or national service acted so as to qualify a citizen for the vote, whilst avoidance of such service acted to disqualify a voter. The linkage between older forms of civic republicanism and the military ideal has already been remarked upon and has been set out in detail by Honohan and thus it seems plain that civic republican ideals were informing electoral law. These particular ideas are, on doubt, deeply unattractive to modern eyes because they suggest that it is only by service to one’s country that one is able to become a citizen. It could be argued that the decline of the old-fashioned ‘service to nation’ underpinning of the vote and its replacement with a general, apparently more democratic, “open to all” provision is to be welcomed. However, the decline of civic republicanism has led to a decline in voting. It is argued that the ideology is valuable but, as a way of promoting the idea that convicted prisoners ought to be permitted to vote, indeed encouraged so to do, it seems distinctly unpromising. If a person is able lawfully to be exempted from military service and nevertheless loses his vote, it would seem positively perverse to argue that an ideology that supports this position is nonetheless capable of supporting the idea that people who are adjudged destructive of society (convicted prisoners) should be positively encouraged to take part in democratic society. However, it will be argued that such a position is not perverse because it is consistent with more modern ideas of civic republicanism conceived in more peaceful times.
Votes for Women
Possibly the most widely held erroneous belief in electoral law is that women could not vote before 1918. Whilst it is true that women aged 30 and over were granted the parliamentary franchise in 1918 and the voting age for women was reduced to 21 in 1928 by the Representation of the People (Equal Franchise) Act; women had, in certain circumstances and for limited purposes, been able to vote for some 50 years.
The story of women’s capacity to vote is useful because it illustrates another area of the civic republican theory despite the fact that, once again, some parts of the idea seem anti- democratic, patronising and, it must be said, downright offensive. However, as the important work of Patricia Hollis,70 shows the history of enfranchisement of women and their service in
69 The latest amendments to the service voting provisions of the Representation of the People Act 1983 are contained in the Electoral Administration act 2006 s 13. 70 See below for quotations and citations.
15 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law elected positions shows the positive facet of civic republicanism and, it is argued, the route through to the enfranchisement of prisoners.
The property qualification for parliamentary voting for the county seats remained fixed at the 40 shilling franchise from 1430 until well into the nineteenth century, however as it was first revised and then assimilated to the borough franchise women began to qualify on financial grounds, but for the fact that they were female and they became ineligible for registration on the parliamentary electoral register. No such objection could exist in the case of the local government electoral registers and women who owned the requisite amount of property could vote. From 1870 onwards women were elected to local government bodies such as the School Boards, the Boards of Guardians of the Poor, Parish Councils, and Rural District Councils, and from 1907, as a result of the passage of the Bill introduced into the House of Lords by John Burns, the president of the Local Government Board71 to Borough and County Councils.
Women became very active in these organisations; as Hollis notes72 there were more elected female representatives in 1900 than in 1980 and, in Lincolnshire by 1900 there were nine female Rural District Councillors and 31 female Poor Law Guardians.73
Hollis’ explanation of the work of women councillors and the possible effects upon the widening of the franchise bears repetition:74
As local government developed, women had taken their conventional charitable work for women, children, the sick and the elderly into the town hall. They called it “administrative philanthropy” or “municipal housekeeping”. Their work was demanding, dirty and even dangerous. They went into filthy workhouse wards where epileptics, dying children, imbeciles—as they were known then—lying-in mothers, the elderly with senile dementia and the highly infectious all shared wards, beds, stained sheets and chamber pots which doubled up as wash basins. As Councillor Edith Sutton of Reading noted rather sourly, “Married men would not do this sort of work because their wives did fear that they would bring infection home”. It was left to the women to do it. Rosamund Davenport Hill inspected industrial truant schools in the City to find young boys flogged, chained and, with a nice touch of sadism, doused with cold water and made to stand in courtyards in midwinter. She sacked the senior teachers, paid the boys’ medical bills, fed them sausages and mash, and took them off to the zoo. The women brought tea, red cushions and canaries into the bleak workhouses for the elderly; devised sheltered housing and special schools for disabled children; foster care for orphaned children; and fought to bring down rates of infant mortality which in 1899 were 160 per 1,000, worse than most famine-stricken sub-Saharan countries today. They really made a difference. The local government they confronted was that of Chamberlain’s vision of “Town Hall Inc”, based on utilities, transport, grants and fees, clearance and construction. Women added another dimension, what we would call social services, for those who were marginalised—the prostitute with syphilis, the
71 Not, contrary to Hollis, President of the Board of Trade. Burns, one of the Labour MPs elected in the 1906 General Election, did not become President of the Board of Trade until shortly before the outbreak of war when he resigned from the government. 72 Ladies Elect: Address by Baroness Patricia Hollis to the AGM of the Women's Local Government Society, Sheffield Town Hall, Saturday 10 March 2007. 73 Hollis, P, Ladies Elect: Women in English Local Government 1865-1914 (Oxford, Clarendon, 1987) p 374. 74 Hansard (Lords), 8 March 2007, cols 368-370.
16 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
alcoholic tramp, the foul-smelling beggar, the deformed child—and reclaimed those down-and-outs back into moral citizenship. Women believed that such local government work would win them the vote. However, the Liberals feared that propertied women, as they would have been, would vote Tory, while the Tories feared that female suffrage would challenge male authority. Gladstone, in his own inimical way, added that if married women got the vote, husbands would either have two votes or there would be marital strife. However, to give votes to single women, spinsters or widows—the failures of their sex—would be to reward those who had failed to find or hold a husband. Clearly no one should be enfranchised, and the Lords found the argument very fetching. Indeed, far from local government being, as the noble Lord, Lord McNally, suggested, a stepping-stone to the suffrage in the years from the 1870s through to 1914, as women had hoped, instead it blocked it. Men now decided that there were two sorts of politics: the domestic politics for the spheres of education, poor law and hospital work which women could and should do; then there was the imperial sort covering commerce, trade, industry, war and defence, empire and money, which women clearly could not. Precisely because women had found their appropriate service in local government, they were not needed or wanted in Westminster. The Archbishop of Canterbury of the day said – trying, but failing, to be helpful – that this was not about women’s rights, but about women’s service. He supported women going into town councils, but he was vehemently opposed to them having the parliamentary franchise.
Hollis thus demonstrates an interesting and valuable development. We can conceive of politics of the ‘imperial sort’ – the night watchman state of the nineteenth and early twentieth centuries – concerned with the protection and development of trade, or of the ‘domestic sort’ – which is more readily recognisable as the welfare state which started to grow with the election of the Liberal government in 1906.
For the sake of completeness, as we saw above, the wartime parliament enacted the Representation of the People Act 1918 which enfranchised women over 30 in February 1918. The government then introduced the Parliament (Qualification of Women) Bill on 31 October 1918; which completed all its parliamentary stages within three weeks and received Royal Assent (together with a number of other Bills) on November 21st 1918, the day Parliament was prorogued for the 1918 general election. In 1928 the voting ages for women and men were equalised by the Representation of the People (Equal Franchise) Act 1928 incidentally removing the surprising anomaly that a woman could be elected as an MP up to 9 years before she could exercise her parliamentary (as opposed to her local government) vote.
When women were afforded the parliamentary franchise by the 1918 Act Herbert Asquith, the former Prime Minister and longstanding opponent of that particular enfranchisement of women is reported to have said that women had shown by their efforts in the war that they deserved the vote.75 He could have been speaking in a cynical and patronising way or, alternatively he could have been more positive and optimistic in accepting that – as Hollis later showed – that women’s contribution to national survival and development was, in general, different in kind from but equal
75 See Taylor, AJP, English History 1914-1945 (Oxford, OUP, 1965) at p 133.
17 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law in value to that made by men. In making their specific contribution to the national project women are acknowledged, as a class as having a special and distinct voice. Honohan makes a useful contribution here. Her analysis of the possible conflicts between feminism and civic republicanism point exactly to the ideas which may lie behind the enfranchisement of women.
Civic virtue and citizenship are now conceived as taking a variety of forms and levels of concern amongst those whose goods are interdependent (rather than the usual historical connotation of militarism, masculinism and conformism). This is more congruent with the practices of care – of children, old people and the disabled – which, historically, have largely been the province of women and carried out in the domestic (non-state, non-market) sphere.76
The point being made here is that the old idea of civic republicanism as recognising specific ‘male virtues’ – such as military prowess has shown itself as capable of changing so as to encompass other kinds of virtue- such as the ethic and practice of caring for others. Living as members of a social group may require specialisation and in the past this may have been recognised by stronger ideas of gender roles than would be found acceptable today but it also requires that a range of voices are heard.
IV ANALYSIS AND THE PROBLEM OF VOTING RIGHTS FOR PRISONERS
We have seen that the modern civic republican ideal is that the state and its citizens should act together so as to guarantee to all citizens, so far as possible, the maximum freedom to pursue a worthwhile way of life. The state is there to provide a framing good; in the case of electoral law it is there to provide the opportunity to take part in self-government. During the South African war and the First and Second World wars special privileges were given to member of the military to enable and to encourage them to take part in democratic life. At the end of the nineteenth and the beginning of the twentieth centuries including the period of the First World War the special contribution made by women, especially to the birth of the welfare state, was recognised. This suggests that the background ideology which I have identified as (or thanks to Lori Ringhand, has been identified with) civic republicanism recognises all contributors to society as having a worthwhile and valuable voice. The change in the specific policy required by the ideal was brought about by a recognition that society could not survive by ‘imperial politics’ alone but that some measure of ‘domestic politics’ was also necessary. Adherence to this ideal would tend to exclude, as we have seen, those unwilling (even those ‘lawfully unwilling’) to contribute to the national project. The Representation of the People Act 1918 contained a, one might almost say spiteful, provision disenfranchising conscientious objectors for some six years. It is argued that the provision was indeed spiteful and quite probably counterproductive.
76 Honohan, n 16, p 169.
18 Vote ……? Why? Or fresh thoughts towards a theory of ‘civic republicanism’ in electoral law
It has been argued elsewhere77 following the persuasive case put up by John Stuart Mill,78 that passive or self- electoral exclusion leads to a weakening of the ties between a person and civil society. The argument was advanced that voting ought to be made compulsory in order to strengthen notions of civic duty (the civic republican ideal) and an equally good case could be made to suggest that those who have behaved in an anti-social way, which is to say presumptively prisoners, ought not to be excluded from voting for the simple reason that exclusion from every vestige of public life is liable to make them worse rather than contribute towards their reformation. Convicted prisoners do not contribute to the life of the polity because they are excluded from it; perhaps an important part of their psychological rehabilitation would be to provide them with not only the mechanisms to vote (such as a polling station within the prison) but also with an understanding of why they ought to vote.
The case that modern (or as Honohan sometimes terms it ‘broader’79) civic republican theory supports the idea that prisoners should be permitted to vote can be buttressed by pointing, as Honohan does, to the transformative nature of deliberation within a civic republican ethic. An appeal to the common good may well at first appear to prisoners to be oppressive,; it is certain that upon sentence many of them were told that they were to be locked up ‘for the public good’ or because they posed ‘a threat to society.’ Of course there is an element of truth in these statements, and there is a self-evident case for prisoners to be kept physically separate from the general population, but that does not mean that there is a case for them to be kept intellectually separate. Honohan points out that a broad conception of the public good as a framework to allow citizens to enjoy a wide range of worthwhile choices is only oppressive to those who adopt lifestyles or points of view which are ‘somehow arbitrary, limited or unreflective and do not take account of (the) interdependence (of citizens)’.80 One might well say that engaging prisoners in the practice of voting (as an example or facet of more general political engagement) is an ideal way of freeing them from mindsets and practices which are ‘limited, unreflective and do not take account of interdependence.’
To answer the question posed in the title of this article ‘Vote.. .? Why…?’ may be answered simply by saying that in so doing we express ourselves as that which Aristotle recognised when he described an individual member of the human race as a ‘zoön politicon’, which is not, as it is often translated ‘a political animal’, but as ‘an animal which lives socially.”
77 Watt, n 1 above, pp 55-56. 78 Considerations on Representative Government (New York, Prometheus, 1991) pp 56-58. 79 See, Honohan n 16, eg, p 168. 80 Honohan, n 16, p 168. She credits Sunstein with developing this idea, see Sunstein ‘Democracy and Shifting Preferences’ in Copp, D, Hampton, J and Roemer, J (eds), The idea of democracy (Cambridge, CUP, 1993).
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