Site Meter

Monday, November 08, 2010

Prisoners have as much right to vote as anyone

Prisoners have as much right to vote as anyone

Published Date: 07 November 2010

By Duncan Hamilton

THIS is the 21st century, yes? I get confused sometimes, usually when listening to Tory politicians talking about crime. The demand from former Tory shadow home secretary David Davis that the European Court of Human Rights be resisted on the question of prisoners being given the right to vote is a case in point.
It is a fight designed by Davis to rally the Conservative right and simultaneously emphasise his role as a self-appointed champion of "British freedoms". I note in passing the irony of a champion of civil rights denying the principle of universal suffrage.

Anyway, back to the law. In 2005, the UK government was found to be in breach of the ECHR in relation to the blanket ban on prisoners voting in elections. The grounds included the fact that Parliament had not at any stage weighed the proportionality of that response - as it is bound to do - before passing the relevant statutes.

This "automatic and blanket restriction" on all prisoners was therefore not compatible. The appeal to the Grand Chamber confirmed the decision. In restricting prisoners' rights, the court had to "satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate".

In short, what the court concluded was that there was a margin of discretion for the UK to deny voting rights to some prisoners, but that a blanket ban was unacceptable. It was a reasoned and reasonable decision. Since then, the UK has fought an increasingly futile battle to avoid implementing the decision. Even in May 2010, the Council of Europe expressed "profound regret" at the failure of the UK government to implement the judgment. Now, facing claims for compensation, the UK government has relented.

On the BBC's Question Time, Davis put his position thus: "They (the Court] said in the judgment that one of the reasons they made this decision was because there had been no debate in Parliament. Well maybe they didn't go back to 1867. Maybe they didn't realise there was a democracy here then, but that's when it was debated and we made a decision."

As analysis from a law maker, it would make you weep. Not only does he misrepresent the rationale of the court judgment, but having optimistically described Parliament in 1867 as "a democracy", he then blindly asserts that consideration of these matters 140 years ago should somehow satisfy the requirements of ECHR.

The truth is that the court explicitly considered the Forfeiture Act 1870 (section 2, if you have a spare moment) and indeed further traced the origin of the removal of rights right back to the "civic death" of Edward III. The David Davis approach displays either deliberate misrepresentation or stunning ignorance.

The Little Englander mentality representing the decision of the European Court as an outrageous imposition of a foreign jurisdiction is wholly inappropriate.

Anyway, what now? The government must and will give way. But this will be a very British climbdown. Rather than thinking about this policy from first principles, the focus is on how to make the least possible concession and exclude the greatest number of prisoners without breaking the law. That is the wrong approach.

Surely we don't want to be a country of minimum standards, one which again is dragged kicking and screaming into a rights-based world. The traditional justification for denying prisoners a vote needs to be challenged and justified as a fundamental point of principle. The ban from 1870 which has been maintained through the various derivations in the Representation of the People Acts needs to be considered afresh.

Why, as a society, do we say that a prisoner shouldn't vote? Is it a punishment? Is it because we say those people have ceased to be citizens? Are we comfortable with the concept of the perpetual forfeit of basic human rights? How does that Draconian approach sit with the rehabilitation of offenders? How can we advocate that concept and simultaneously tolerate a presumption that it is OK to continue to dehumanise prisoners?

And where is the consistency in granting prisoners some basic rights and not others? Why, for example, should a prisoner have the right to access publicly funded legal aid in order to challenge things like "slopping out" in the courts, but not have the right to vote for a party offering that same change at the ballot box?

Public opinion is probably against me on allowing prisoners to vote. Many of these people are troubled, dangerous and a threat to society. But that can't be enough of a reason to simply assert that they have lost the right to participate in a democracy. The principle of universal suffrage is the golden standard, the default position in a democracy. It is for those who want to detract from that fundamental freedom to make their case based on evidence and intellect. So far in this debate, I have seen neither. Lots of undesirable and unattractive people - in and out of prison - get to have an equal say with those of us who obey the law. When you start drawing arbitrary lines between those who are deemed worthy of a vote and those who are not, alarms bells should be ringing for us all.


CalumCarr said...

Good case put .... unsurprisingly. Thanks, John.

jailhouselawyer said...

Calum: It is a good article and well argued. There is another good one from North of the Border which I will publish as soon as the paper corrects the libel against me which was the only thing wrong with it.