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. © The author and the Human Rights Centre. All rights reserved. No part of this publication may be photocopied, recorded or otherwise reproduced, stored in a retrieval system or transmitted in any form or by any electronic or mechanical means without the prior permission of the copyright owner and publisher. This publication is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the copyright owner and publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. 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.