Papers in the Theory and Practice
of Human Rights
Human Rights Centre
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
Human Rights Centre
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
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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).
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.
3
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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 courtmartial 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.
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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,
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.
11
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.
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.
14
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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.
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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
FOR
THE HISTORY OF ABSENT VOTING, THE SERVICE VOTE AND VOTES
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.
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.
22
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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.
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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.
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 <http://www.statistics.gov.uk/StatBase/ssdataset.asp?vlnk=3723&More=Y>.
The disparity between the numbers of those believing that there is a duty to vote and those actually
voting may provide further evidence of the accuracy of the norm-based theory discussed below.
33
See, eg, Keaney, E and Rogers, B, A citizen’s duty: voter inequality and the case for compulsory
turnout (London, IPPR, 2006).
34
See the helpful summary of ‘rational choice’ and ‘norm’ theories at pp 19-20 of Keaney and Rogers.
35
Downs, A, An Economic Theory of Democracy (New York, Harper and Row, 1957).
36
Huberman, M, ‘Working hours of the world unite? New international evidence of worktime 18701913’, (2004) Journal of Economic History 964-1001, p 965.
37
Notably the General Election of Saturday 14 December 1918.
30
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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 welloff 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.
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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.
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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.
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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.
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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).
62
RPA 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.
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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).
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.
65
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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 <www.electoralcommission.gov.uk>. See pp 45 of the document.
67
Whilst there is seventeenth century statutory provision that a Member of Parliament must be over the
age of 21, it would seem that the provision that a voter has to be ‘of full age’, ie, 21 stems originally
from the tying of the franchise to the possession of property in 1430. A man came into his estate at the
age of 21. These ages have now, of course, been revised downwards by s 1 Family Law Reform Act
1969. It is interesting to note that few of the reforms of voting age have actually been accomplished by
electoral law measures.
68
An Act to remove doubts as to the interpretation of subsection (4) of section five of the
Representation of the People Act, 1918.
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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 antidemocratic, 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.
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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.
Ladies Elect: Address by Baroness Patricia Hollis to the AGM of the Women's
Local Government Society, Sheffield Town Hall, Saturday 10 March 2007.
72
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.
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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.
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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 virtuesuch 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.
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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.
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).
78
19