Just as people in jail have a fundamental right not to be tortured, so too do they have a right to take part in elections
Susan Easton, Guardian, Thursday 10 February 2011 10.05 GMT
Prisoner voting rights are denied in Britain despite the European court of human rights ruling against such measures. Photograph: Graham Barclay/Bloomberg NewsThe government has already been warned it must give prisoners the right to vote in elections to the Scottish parliament and Welsh assembly on 5 May, but MPs have yet to concede the point. On Thursday they will vote on a motion, put forward by David Davis and Jack Straw, opposing the right of prisoners to take part in elections, which acknowledges the UK's treaty obligations under the European convention on human rights, while asserting that this is an issue to be decided by parliament, not judges in Europe.
The motion supports the current position that prisoners convicted of offences other than contempt should not be allowed to vote and instructs the government to refuse compensation to prisoners who succeed in their claims. This displays a cavalier attitude to these treaty obligations as it acknowledges them while seeking to evade them and disregards potential benefits of change.
The hostility to prisoners' voting rights reflects a wider hostility to prisoners' rights, but it is already firmly established in both Strasbourg and the domestic courts, that prisoners carry their rights under the European convention with them into prison, including the right not to be subjected to torture, inhuman and degrading treatment and the right to respect for private and family life – even this latter right, while qualified by the constraints of imprisonment, is not extinguished.
If we delve deeper into the anxieties about restoring the vote to some sentenced prisoners, we find that they are not well founded. As Thomas Hammarberg has forcefully argued the right to vote is of fundamental importance and should not be denied simply because of criminal convictions.
The European court of human rights in Hirst v UK (No 2) and subsequent cases has firmly rejected the view that denying the vote is an appropriate element of prisoners' punishment and has criticised imposing this sanction where it bears no relation to the original crime. It is seen as a disproportionate and arbitrary measure that is rarely linked to the original offence.
The court has also criticised the denial of such a fundamental right because it would offend public opinion to allow prisoners to vote. Yet concerns over the public reaction have weakened the government's resolve to address this issue.
Possessing a vote would give prisoners a stake in the democratic process and promote a sense of civic responsibility. This may contribute to their rehabilitation and reintegration into society as it reminds prisoners of their civic obligations and duties as well as their rights and bring them back from a state of civil death.
There have been no large-scale research studies of the link between voting and offending, but using available statistical data, Uggen and Manza (pdf) found that there were "consistent differences between voters and non-voters in rates of subsequent arrest, incarceration and self-reported criminal behaviour".
Fears that prisoners will distort the political process and sully the ballot box if they vote en masse for a particular candidate are misplaced. It is proposed that prisoners will be allowed to register for voting using their former home address, the address where they intend to reside on leaving prison, or to make a "declaration of local connection" based on notional residence. Checks on identity for postal voters will be easier in a custodial context than outside so the process may have more integrity.
Despite the fears that some have aired of prisoners being allowed out to vote, there is no danger of confronting a prisoner on temporary release while queuing – possibly late into the night – at the polling station.
Although prisoner voting is presented as alien and threatening, it is permitted in many other states and clearly the exclusion of prisoners is incompatible with the principle of universal suffrage which lies at the heart of democratic societies. To link rights with deservedness is to misunderstand the nature of a fundamental right. Moreover, votes for prisoners were granted in the Irish Republic in 2006 and many other states, including the Netherlands, permit prisoners to vote without adverse social effects.
If changes are introduced, it seems likely that the vote will be limited to those serving shorter sentences: periods of one to four years have been mooted as the threshold for disenfranchisement. The vote is also unlikely to be granted to those convicted of electoral offences. But while the Strasbourg court has made it clear that states do have some leeway in negotiating this issue, it will no doubt closely scrutinise the UK reforms and is likely to demand more substantial change than the ones currently being considered.
Dr Susan Easton is a Reader in Law at Brunel University and the author of Prisoners' Rights: Principles and Practice, Routledge (2011)
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