INTRODUCTION

Until the enactment of enabling legislation in 2006, Ireland occupied a strange no man's land in relation to the voting rights of its prisoners. Prisoners were not divested of these rights by legislation and therefore in theory continued to enjoy the right to vote under article 16 of the Irish Constitution. Indeed, as pointed out by the Supreme Court in Breathnach v. Ireland, the legislation that had been enacted in this area was in fact enabling prisoners' right to vote, allowing them to vote if given temporary release. Therefore, prior to 2006, the barrier that faced Irish prisoners in exercising the vote was not constitutional or legislative in nature. Rather, the difficulty was that successive governments had failed to provide an administrative means through which they could access a ballot, a situation that also extended to remand prisoners and those in prison for civil debt. The impediment to exercising the franchise for Irish prisoners was accordingly de facto, rather than de jure.

The first purpose of this chapter is to examine the legal history of the right of suffrage as it applies to prisoners in Ireland, tracing the development of voting rights from the initial ban on prisoners registering to vote in the 19th century to the unsuccessful Supreme Court challenge to the status quo in Breathnach. Ultimately, the catalyst for change in Ireland was to come from Europe, in the form of the recent decision of the European Court of Human Rights (ECHR) in Hirst v. United Kingdom.