By Alex Bryan
© Blogs Telegraph
Ever since Hirst v. United Kingdom , when the European Court of Human Rights (ECHR) ruled that the blanket ban on British prisoners voting contravened the European Convention on Human Rights, the issue of the ban has been contested with fervour and a not-inconsiderable number of angry newspaper editorials. In the six years since the judgement, the debate has mainly centred on the supposed ability of European courts to override legislation made in the House of Commons, meaning that most debates, both in Parliament and outside it, have had little emphasis put upon the substantive issue on whether prisoners should have the vote.
This is understandable; it is an easy way for an MP to gain popularity to appear to fight for Parliamentary sovereignty, and many MPs take any issue even tangentially linked to the EU to as an invitation to express their dissatisfaction at current European agreements. However, this has encouraged a vast reactionary response against changing the law to allow prisoners to vote, much of which is linked only to Euroscepticism, and not to the issue of prisoner voting. Taken in conjunction with the fact that it is a case which involves lawyers (another favourite scapegoat of Parliamentarians) and prisoners (invariably characterised as ‘murderers and rapists’), then it is hardly a surprise that many have preferred not to debate the substantive issue. It is as if it is taken as a given that prisoners should not have the vote. However, There do appear to be compelling reasons to consider changing the law.
The proposal to incorporate the incarcerated into the franchise is obviously and inevitably an unpopular one, largely because of the way people think about the imprisoned. Firstly, it seems odd to say that to commit an entirely apolitical crime delegitimizes your political views, or should result in your effective suspension from political society. An act of robbery, for example, clearly transgresses the law, but it also seems to have little relation to one’s ability to contribute to political discourse unless we say that the act of committing any crime of a serious enough nature to be imprisoned warrants the revocation of the vote – In the words of Dominic Raab MP, ‘If a person commits a serious enough crime to be sent to prison, they forfeit their right to vote, along with their liberty, for the limited period of their incarceration.’ This though seems fraught with difficulties. It is naive to think the dividing line between custodial and non-custodial sentences is a clear one based upon seriousness of the crime. When it is in many cases arbitrary, it is strange that the removal of the vote from prisoners is automatic rather than a punishment that the judge is able to implement at their own discretion.
At this point in the debate, those who defend the current legislation often say something similar to what David Davis, amongst others, said in a Parliamentary debate on this issue; that we should not give the vote to ‘the murderer and the rapist.’ This kind of characterisation of all prisoners is completely inappropriate for such a debate, as well as being entirely inaccurate. Only around 10% of prisoners were convicted for sexual offences; should we deprive the other 90% of prisoners the vote because we find the actions of this group deplorable? Surely not, and it is illegitimate to even deprive those 10% who have committed such heinous crime. The vote is not a reward for good behaviour, nor something given to those who the state believes will use it properly. It is a basic and highly symbolic right of citizenship, and therefore all British citizens should be able to vote.
Of course, the simple act of imprisonment does involve the civic rights of the inmate being infringed. It must be stressed that there is a world of difference between the withdrawal of the freedom of movement and right to meet in groups and the retraction of the vote. The first two freedoms must be withdrawn because it is necessary for the state to curb them in order to protect society and to properly ensure that the prison sentence is abided by. Giving prisoners the vote in no way makes society more vulnerable; it is not essential in the act of effective imprisonment.
Those who say that prisoners political rights should be curbed seem to forget that the revocation of the rights of freedom of movement, and the severe restrictions on freedom of speech and expression, prevent the prisoner from being politically active to a much greater extent than the removal of the vote. Whereas elections are only held occasionally, the day-to-day political acts and activities that can no longer be performed once incarcerated are far more important in the isolation of prisoners from the political community than disenfranchisement.
However, whilst the actual importance of the vote within the political community is relatively weak, symbolically it is of enormous significance, and this is another reason for changing the law to allow prisoners to vote. To give prisoners the vote would not be a free invitation back into civic life – the other punishments the state gives them ensure this is not the case. Rather, it would allow them to maintain an association and affinity with wider issues of importance. If we wish people who exit prison to be able to re-integrate into society, it is unwise to send a message to them saying that we no longer value them as citizens, and that their political views and membership of the political community is entirely suspended for the duration of their sentence.
As Parliament must debate this issue as a matter of relative urgency, this debate will rage until a decision is reached, and is likely to continue in the current vein of short-sighted populism and the vilification of the ECHR, lawyers and prisoners. Whilst MPs are reluctant to listen to the ECHR on this matter, they would do well to recognise that there is a reason that they take issue with the current UK laws on prisoner voting. Perhaps the best solution would be to get rid of the automatic loss of the franchise for prisoners, instead placing the power in the hands of judges. No doubt MPs would baulk at this idea (references to ‘unelected judges’ are depressingly common in Parliament), but the change would mean that only prisoners who are deemed to be of sufficient danger would have the franchise revoked. The law as it stands is draconian and harmful to the rehabilitation of prisoners. Changing it would result in a more balanced approach to voting rights in sentencing, meaning that whilst we can still deprive some prisoners of the franchise, we need not do so for all.