So I decided to rant about prisoners’ voting rights…

So, the prisoner votes issue is once again in the news, and right on cue we have the usual tired, disappointing arguments being bandied about.  David Cameron has shown a remarkable level of obstiance on the issue, stating that the idea of prisoners having the vote makes him ‘sick’ and that “prisoners are not getting the vote under this government”. The deadline for the government to bring forward legislative proposals is November 22nd, so it was expected that the issue would resurface, but I had hoped that the government would finally see sense. Silly me for being so naive.  The day after these comments, the issue was discussed on Question Time (watching QT is always a bad idea when human rights issues are likely to be discussed) and the treatment by the maority of panelists left me angry. Angry enough to resurrect this long dead blog. So, in the words of Faye Dunaway as Joan Crawford: let’s go.

My argument has two strands. Firstly, what the European Court of Human Rights (ECtHR) requires, following Scoppola v Italy (the most recent case, and the final attempt by the UK to change the Court’s mind), would not require huge changes, or complete enfranchisement of prisoners, so the political frenzy is not really justified.  Secondly, the idea that a blanket ban is acceptable reflects an incredibly out-dated, ultimately destructive view of criminal justice and why we punish people.

There are two major cases that have shaped the law in this area: Hirst v UK (No. 2) and Scoppola v Italy (No. 3). I’m going to give a rather brief look at these cases, as they have been covered extensively by the legal press and I’d just be saying the same thing in different words. For further reading, I’d suggest the excellent work of Adam Wagner for the UK Human Rights Blog here, here and here.

In Hirst, the ECtHR set out several key principles, which were confirmed in the recent judgment of Scoppola v Italy (No. 3).

It is clear that the right to vote is seen to be highly important to the Court. In both Hirst and Scoppola the Grand Chamber stresses that the right to vote is not a privilege and that the presumption must be in favour of universal suffrage and inclusion. It is not, however, an absolute right (ie one which cannot be overridden by other factors, such as the right to be free from torture and inhumane treatment enshrined in Article 3 of the Convention) and the Court stressed the width of the margin of appreciation that is afforded to member states on the issue.

The margin of appreciation is the degree to which states are given room to decide things for themselves. That is of course a simplification, and the precise nature of the margin of appreciation has attracted vast swathes of academic writing, but it works for present purposes. A wide margin of appreciation is afforded where abortion is concerned, for instance (see A, B, C v Ireland if you’re interested). The court maintains what it calls a ‘supervisory jurisdiction, even where the the margin accorded is wide. This basically means that they have the final say on whether a measure taken by a state falls within its margin of appreciation or not. This might make it seem like the margin of appreciation is rather empty, but that’s not really the case in practice. The intensity of review that the Court uses in cases where there is a wide margin of appreciation tends to be fairly lax, (again, a simplification of something that has produced a ridiculous amount of academic discussion)  so unless the state is pretty flagrantly overstepping it’s margin of appreciation, they can do what they like.

This jurisdiction is covered in what is the key paragraph of the judgment in Hirst. I’ve provided that paragraph here, in full, because it’s often best to go right to the primary source.

82. Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the 2000 Act which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1. (emphasis my own)

So we can see that the Court disliked the following features of the UK law:

  • it was indiscriminately applied
  • to all convicted prisoners,
  • automatically,
  • regardless of the nature or severity of their crime.

This opposition to blanket and indiscriminate bans was reaffirmed in Scoppola, despite the UK government’s attempts to make the Court ‘reconsider’ its position. The reason Scoppola is significant because the Court emphasised the width of the margin of appreciation that is afforded to member states in how they enfranchise prisoners. In effect, member states can do as they please as long as there is not a blanket, indiscriminate ban.

In short the government could put forward proposals that would be fairly painless and Strasbourg would have to accept them. So for instance, enfranchisement of prisoners sentenced to less than 6 months would be perfectly acceptable, legally. The Court is not asking for complete enfranchisement of prisoners, despite what some of the news coverage would have you think. It is a minor change and the government are stubbornly refusing to consider on a calm, rational level. It is also a minor change that is entirely justified on principle.

Why allowing prisoners to vote is normatively justified

It is clear that the legal position has relaxed to such an extent that the bare minimum enfranchisement would be acceptable . I am of the view that we should be very, very suspicious of measures that disenfranchise groups and as such I believe that prisoner disenfranchisement, where it operates as a general practice, is unacceptable.

Breaking the social contract

Many of the opponents of prisoner voting argue that criminals have ‘broken the social contract’ and as such have somehow lost their rights, of something along those lines. This is manifestly nonsense (proper legal term) and reflects dangerously outdated notions of prisoners’ rights. The prevailing opinion in the domestic courts is that prisoners only lose those rights which are expressly or by necessary implication taken away from them. This seems obvious when you think about it. Prisoners clearly do not lose all of their rights, otherwise we would have a situation where prisoners could be tortured, and killed with impunity when they are prison. At paragraph 69 of Hirst, the Court said ‘prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty’. The Court then goes on to give examples of case law where they have held that prisoners retain their Convention rights, subject to justifiable, proportionate limitations. So if you want to argue that prisoners shouldn’t be able to vote, you need to be able to make a better argument than breaching the social contract. It simply doesn’t hold up.

Why do we punish people?
I think it is fair to say that, for the most part, we have moved away from a view of punishment as solely serving a retributive function. Retribution is a factor, obviously, punishments for breaking the law are the most obvious way for the state to express disapproval of certain conduct. However arguments that those who break the law ‘deserve’ punishment are ultimately unhelpful. They tell us nothing about the level of punishment that is appropriate, other than a resort to biblical ‘eye for an eye standards’. Any adequate theory of punishment must therefore take into account other factors. Of these, the rehabilitation of offenders must be given significant weight.

If rehabilitation is rightly recognised as key to our theory of punishment, then we must cast serious doubts on the efficacy of prisoner disenfranchisement. The right to vote is the fundamental building block of democracy. It is the primary means by which individuals make their voice heard and wield power over government (though this power can be illusory – you only get to vote on issues that politicians believe to be important, which historically has meant that minorities have had to use alternative avenues to obtain equal rights).  As the post-Apartheid South African Constitutional Court articulated ’[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.’ So prisoner disenfranchisement is a tool that degrades prisoners unnecessarily by taking away their access to participate in the political process, on a temporary or permanent basis. If rehabilitation is our goal, disenfranchisement is counterproductive. It ostracizes prisoners and has a negative impact on their ability to feel integrated in society when they are released.

A friend of mine (Alex Gabriel, blogger at SoSoGay, The Heresy Club, and wherever else will have him) made an interesting point when I was discussing this with him:’ the people against whom the law is used should not be the people who have no voting ability. If a party pre-1967 had run on n anti-sodomy law platform, the queer people in prison wouldn’t have been able to vote for it’ . Now you might think that of course we don’t put people in prison for such things any more, so the argument doesn’t hold much weight for the present debate. You would, however, be wrong.

Think about the abuse of s.127 of the Communications Act by the CPS to prosecute in the #twitterjoketrial debacle (though of course that conviction was overturned), and the myriad prosecutions and convictions for ‘offensive’ speech on twitter and facebook recently (Matthew Woods was jailed for three months, for instance)

What about Trenton Oldfield, who was given a sentence of 6 months for disrupting the Oxford and Cambridge Boat Race? Do we really want to live in a country where protest lands you in prison without a vote? There was fairly unanimous criticism of Russia for putting Pussy Riot in prison, but the treatment of Trenton Oldfield doesn’t seem radically different.

What about those who end up in jail because of consensual sexual activity that according to R v Brown (a notorious case that all law students will know well) is illegal?

Should they not have the power to use their vote to change the law that has put them in prison?

Much of the opposition to prisoner votes conflates all prisoners with the evil, dastardly villain who we should have no sympathy with and doesn’t to be able to vote, and more importantly it seems to assume that all laws are good laws. When people say ‘when people break the law, they lose the right to have any say in what the law is’ they are excluding legitimate opposition to bad laws.

Parliamentary Sovereignty: the true battleground?

I’ve consciously avoided what some see as the real issue here: sovereignty – is Parliament to sovereign to do as it pleases or is an external body able to force Parliament’s hand? Sovereignty is how the Tory backbenchers are framing this debate, and they are the ones who are forcing David Cameron’s hand on this issue (I think he would probably quietly cede to Dominic Grieve’s advise were it not for the whole thing being blown out of proportion. I’m avoiding the issue because I have no particular desire to dig up constitutional law from whichever corner of my brain it has taken up residence, and this post is already long enough as it is.
That said, I don’t think this case is really the appropriate battleground for this debate. The UK has signed up to the ECHR and Article 53 states ‘the High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties’, and it simply cannot pick and choose which judgments they choose to comply with. By ignoring judgments (or attempting to) the government is quite clearly flouting the rule of law (the idea that everyone, no matter who they are, is bound by the same laws and must comply with those law) and that is of serious concern. As Joshua Rozenberg points out, if the government pass Nov 22nd without putting forward legislative proposals, the will lose respect not just internationally but domestically. They will also be stuck with a bill of significant proportions (Adam Wagner of the UKHRB suggests it could be around 160m). Of course the sensible thing to do, if this is an issue that the government has such strong feelings about, is to leave the Council of Europe and thus be free of those pesky Strasbourg judges for good, but that’s clearly not going to happen. For all the anti-rights rhetoric we see from the government, leaving the Council of Europe is an incredibly drastic step and it just isn’t going to happen any time soon.

Put simply, enfranchising prisoners probably wont make much difference to the outcomes of elections, it will however allow prisoners to participate in the most basic way: exercising their democratic right to vote and have their voice heard. If we are serious about the rehabilitation of criminals and lessening recidivism rates, and we should be, because the prison system is creaking under the strain, then giving prisoners the vote seems a no-brainer. And even if you only want to give some prisoners the vote, I would disagree with you, but that would be totally acceptable to the European Court. The Court has already made the compromise that politicians are yearning for: the margin of appreciation on this issue is really very very wide. This obstinate refusal to have any proper debate on the issue is, as Joshua Rozenberg, pointed out, thoroughly depressing.



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Filed under Human Rights, Law, Prisoner Votes

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