Why on earth shouldn’t prisoners vote?
It’s sad to have to record that on 10 February 2011 the house of commons debated and passed a motion[1] that asserted two indefensible propositions: that we should continue to deprive almost all prisoners of their right to vote, and that the European Court of Human Rights (ECtHR) was trespassing on parliament’s territory in ruling that the UK’s blanket ban, hitherto imposed without parliamentary debate, contravened prisoners’ fundamental rights under the Convention. It’s almost sadder to record that this scurrilous and retrograde motion was co-sponsored by Jack Straw, veteran Labour MP and former Labour home secretary, foreign secretary, “Lord” Chancellor and “Justice” Secretary, as well as just about everything else. The motion was carried by 234 votes to a measly 22 [2], plus two tellers for each side, with nearly two-thirds of MPs absent or abstaining.
For nearly five and a half hours MP after MP – the vast majority of them Tories — rose to announce that anyone who has been sent to prison for committing a crime forfeits the right to vote, as if this were an argument and not merely a statement of current fact. Most added a thunderous denunciation of the European Court for daring to challenge a mythical but much cherished treasure called ‘parliamentary sovereignty’. I watched much of the debate, with mounting gloom. The intellectual and even the ethical calibre of the vast majority who spoke was frankly lamentable. Even reading the full record of the debate in Hansard I could detect not a single valid argument for depriving people in prison of their vote as well as their liberty. Bad-mouthing the European Court because of disagreement with a specific ruling in a single case smelled in many cases like threatening the referee, with a generous helping of gut Europhobia thrown in (how many of the red-faced blusterers understood that the Court has nothing to do with the EU and that Britain had been largely instrumental in setting it up after the second world war, and accepting its jurisdiction?).
I longed to shout at the screen that the question is not whether we should give prisoners the right to vote, but rather what possible purpose is served by depriving them of it? There are positive grounds for encouraging prisoners to exercise their right to vote, as part of the rehabilitation effort to help them to see themselves as members of society with both rights and duties — an effort which, if successful, could only help towards a reduction in the rates of reoffending. Depriving them of the vote has the directly opposite effect: it sends a signal that they are to be treated as pariahs, unpersons, excluded from society, deprived not only of their liberty but also of the most basic right of a citizen, the right to vote: and if they are treated as being excluded from society, there’s an unmistakable implication that their duty to society has disappeared with their rights.
Many MPs who spoke carried on about “murderers and rapists”, as if that had anything to do with it. Some fundamental rights are obviously enjoyed by our fellow-citizens even after they have gone to prison, regardless of the gravity of their offence – the right to life and the right not to “be subjected to torture or to inhuman or degrading treatment or punishment“, are two obvious examples. Only vindictiveness and a morbid attachment to the idea of punishment argue for a maximum deprivation of rights rather than the minimum, namely that which flows logically from the basic deprivation of liberty which imprisonment entails. If anyone can point to a single rational purpose served by taking away this basic voting right from prisoners, I shall be very glad to know what it is. But I have yet to hear or read a single one.
There’s one category of prisoner for whom the deprivation of voting rights is especially and most obviously indefensible: namely, those serving IPPs (indeterminate sentences for public protection) who have served their tariffs and thereby completed the punishment deemed appropriate for their offences, but who are still in prison indefinitely, not any more as a punishment but in preventive detention, because a group of men in suits is frightened that they might reoffend if released. Some of these have now been in prison for several years beyond their tariffs and have virtually no hope of ever being released, because they can’t satisfy the parole boards that they won’t reoffend if released, and often can’t get places on the courses which parole boards in practice regard as a necessary (but by no means sufficient) condition for release. (More on this, if you’re interested, at https://barder.com/3013 and http://www.labourlist.org/ken-clarkes-proposals-on-ipps-deserve-a-heartfelt-welcome.) There’s no possible justification for punishing these people in their private Kafkaesque hell, and least of all for depriving them of the right to vote on top of all the other unjust deprivations that they suffer.
It’s profoundly depressing that Ed Miliband’s New Generation Labour seems to be about to try to out-do the Tories on this issue by being even more hard-line than the baying Tory blimps, reportedly preparing to demand that if the coalition plans to confine the voting ban to those serving sentences of more than four years (to avoid having to pay out millions of pounds in compensation for failure to act on the European Court’s ruling), that cut-off should be reduced to one year. I wonder what happened to Ed Miliband’s promises that under his leadership Labour would regain the ownership of the title of principal defender of human rights? It’s a relief of sorts to see that none of the principal members of Labour’s front bench voted for Straw’s miserable motion (nor did the coalition front bench); but sad that no Labour front bench stalwarts voted against it, either. All honour, then, to the gallant 22 plus two tellers who braved the scorn of the hangers and floggers to record their opposition to this grossly misconceived text (which appears below[1], along with the names of those[2] who bravely stuck their heads above the parapet).
[1] The motion read: Resolved, That this House notes the ruling of the European Court of Human Rights in Hirst v . the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
[2] The roll of honour: those who voted against the motion were:
Beith, the Rt Hon Sir Alan; Bottomley, Sir Peter; Brake, Tom; Edwards, Jonathan; Foster, the Rt Hon Mr Don; Gardiner, Barry; Green, Kate; Hames, Duncan; Hermon, Lady; Hughes, the Rt Hon Simon; Huppert, Dr Julian; Jackson, Glenda; Llwyd, the Rt Hon Mr Elfyn; Love, Mr Andrew; Lucas, Caroline; McCarthy, Kerry; McDonnell, John; Munt, Tessa; Qureshi, Yasmin; Reid, Mr Alan; Williams, Hywel; Williams, Stephen; plus the tellers for the Noes, Jeremy Corbyn and Lorely Burt. Bravo!
Update (13 February 2011): The likely implications for Britain’s membership of the EU and the Council of Europe of a decision, unthinkable until now, to withdraw from the jurisdiction of the European Court of Human Rights and/or from the European Human Rights Convention itself are discussed in an informative and thoughtful blog post by the BBC’s Gavin Hewitt, here. (Hat-tip: Peter Harvey, once again.)
Brian
You are more in touch that I am but I am sure that I read that both front benches were under orders to abstain. In other words, the country’s leading politicians on both sides of the House were told to express no public position on the simple matter of whether or not the UK should fulfil its treaty obligation. The next time a British politician — of any party — lectures the foreigners on human rights, the response will be depressingly obvious.
Brian writes: Thank you for this, Peter. Alas, I can’t argue with what you say. Of course we know Cameron’s views: the idea of “giving” votes to prisoners makes him “sick to his stomach”, but apparently not as sick as having to dish out millions of pounds of taxpayers’ money to criminals!
Well said Brian – I agree entirely. Have posted on this matter recently on my blog though I approached it from a more legal viewpoint. I may do a bit more on this subject at some point next week.
Interestingly, John Hirst, was held for about 10 years after his “tariff” expired. He was denied the vote throughout his period of detention. Furthermore, there is a Scottish Court of Session judgment which says that s.3 of the Representation of the People Act 1983 is incompatible with Protocol 1 Article 3 of the European Convention on Human Rights. Thus, our government not only ignores the Strasbourg Court but also the highest civil court in Scotland.
Some will also find it strange to be sticking out on this issue when Parliament is about to alow homosexual couples to marry etc. Such enlightenment on the one hand and such medievality on the other !!
You appear to be diluting your argument in principle for one of pragmatism or am I being simplistic?
I would add that it appears to many/some that “populist” is invariably a term of condescension to the unwashed ignorant masses by their intellectually superior betters. Could that term be conceivably applied here to those who are not so vociferous in their opposition to the result of the vote?
Brian writes: I make no apology for labelling as ‘populist’ the expression of views which appear to be designed to curry favour with the more feral of the tabloids and the Europhobes while being devoid of any rational basis. My reference to Mr Cameron’s views and his contradictory intentions highlights his, not my, dilution of principle with pragmatism.
In Spanish political debate ‘populist’ meaning mob rule is often opposed to ‘democratic’ meaning constitutional representative democracy. People in Spain know what happens when the democratic institutions of the State fail and the ‘populus’ has its way. It is not a pretty sight.
Brian writes: Thank you for this interesting comment, Peter. It’s not always easy to distinguish between ‘mob rule’ (e.g. enforced by generous application of Mme. La Guillotine) and people power, as exemplified by the toppling of the Mubarak dictatorship by a mass uprising of the people, or by the extensive success of passive resistance inspired by Gandhi. The exercise of people power can easily turn ugly. But as Churchill implied in his famous aphorism, what else is there? Quis custodiet, etc.?
Brian, I agree with you largely. I fear, though, that many of those MPs who voted for the motion did so as an easy way of demonstrating their toughness on crime, and also because they reckon the question of whether prisoners should have voting rights is a big yawn with the average voter outside prisons. I suspect that said voter, being occasonally the victim of assault, mugging or burglary and more generally fed up with reading about nasty crimes committed on others, reckons that losing one’s vote for the duration is part of the bargain that criminals implicitly sign up to by committing the crime and that those in prison have therefore nothing to complain about. Of course this is a weak argument, being applicable to any unfair punishment, but there it is.
Brian writes: Thank you for this. I’m afraid that you are probably right about the real motives and intentions of those who supported the Straw-Davis motion.
I imagine that the disenfranchisement of prisoners became necessary only when we started having postal or proxy votes, and I imagine that prison governors and the POA said, and may still say, that voting (and perhaps canvassing) in prisons would be bad for security and mean a lot of expensive overtime. However that may be we have now to face the question of principle, unless of course we are one of the disgracefully large number of MPs who abstained. It really does not say much for our democracy – the word of the month – if we can so lightly withdraw the right to vote. It just seems pointless.
Brian writes: Thank you, Ronnie, for making such cogent points in such a small space. I should take lessons from you!
Those interested in this subject and in these comments may also like to read — and contribute to — the comments on the same original article in LabourList, at http://www.labourlist.org/why-on-earth-shouldnt-prisoners-vote, where some good arguments are going on, including an especially interesting comment by John Hirst, the former prisoner whose claim against the British government for compensation for the deprivation of his vote in violation of his Convention rights brought the whole issue to the surface.
<b>Brian</b>
https://barder.com/ephems/
A recent case in Spain might be of interest. Spain has a law that bans political parties that are associated with terrorism. Batasuna was banned, as Sinn Féin would have been banned in the UK, not for what it proposed politically but because it was part of a terrorist organisation. Another party (Aralar) has operated quite freely with a similar political programme. Several attempts to reinvent Batasuna under different names have failed; one is under way now for the May elections. A newspaper was closed some time ago for the same reason, i.e. that it was a part of a terrorist organisation not because of its political line.
The law banning parties that support terrorism went to Strasbourg, with the appeal having the backing of the mainstream Basque Nationalists. The response was devastating. A unanimous verdict upheld the ban, saying that it was an essential safeguard for a democratic society (quoted from memory).
Brian writes: Thank you once again, Peter. Interesting case! It shows that the ECtHR doesn’t always or automatically take the side of the criminals, as some of its critics seem to think.
The disenfranchisement of prisoners dates back to the 19th century – Forfeiture Act 1870. Modern law in the Representation of the People Act 1983 section 3.
http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-01764.pdf
Brian writes: Thank you very much for this useful information and the invaluable link, which incidentally confirms that between 1967 and 1969 — not very long, admittedly — the only prisoners who were disenfranchised were those convicted of treason. The skies don’t seem to have fallen in during that time; crime rates didn’t rise in 1967 and fall again in 1969, so disenfranchisement doesn’t appear to be an effective deterrent; in fact the whole thing seems to have been a non-event. Time to repeat the experiment, obviously!
Bravo Brian! You covered the case for prisoners’ votes with your customary elegant thoroughness – and your arguments were given extra resonance for me on Radio 4 last Thursday when Jonathan Aitken voiced his total opposition to just about everything you say! I was driving up the M1 when a debate on votes for prisoners came on the car radio – with Aitken a star witness. Good, I thought. Now we might hear some sense on this fraught topic. But not a bit of it. ‘It’s the last thing on their minds’, declared JA confidently, ‘they have other priorities!’ – as though a prisoner’s ranking his right to vote somewhat lower than, say, visits from his wife or feeling safe on his wing was a major criterion in belittling or dismissing that right! Of course it isn’t . The right to vote is not a major preoccupation for any prisoner I have ever come across in ten years working as a volunteer in a London prison. But I also know that when asked about it most prisoners argue that they should retain it – or at least feel it shouldn’t be taken away (especially the 70% or so who are undertaking some sort of training or education). And their arguments? That they are not un-persons just because they’re in prison ( sometimes for a few months only – or on remand, not yet found guilty of anything!); because their wives, children, friends and so on are affected by whatever the government of the day decides, and that they themselves should therefore be able to participate in the making of these decisions.
I was shocked by Aitken’s peremptory dismissal of this right. In fact it sounded unpleasantly like class-based bias – as though the great unwashed under lock and key were simply not worth giving a vote to.
I had assumed, from speeches I’d heard him make, that this once prominent Tory, friend of Thatcher, had learnt something from his time in prison; had become a wiser man, etc. Not in understanding this section of his fellow men he hasn’t! (So, Jack Straw, just look at the company your populist cosying-up to the Daily Mail puts you in! Though not for the first time…)
Finally, how on earth can the rehabilitation aspect of a prison sentence be fulfilled if prisoners are treated as non-citizens during their time behind bars, with no role to play in the participatory democracy many of them will be re-joining within a few months?
Another couple of points from Spain if I may.
Spain appears in the list of countries that limit some prisoners’ rights to vote. I would like to gloss that. Spanish law contains the principle that people who abuse a public office can be barred from voting, and also from standing for election (loss of active and passive civic rights). The British MPs who have been sent to jail for corruption would have been disenfranchised under this system. However, people guilty of such crimes can be banned from voting even if they don’t go to prison; it is a direct punishment for abusing the system. As far as I know, that is the only case in which Spanish citizens can be prevented from voting, and it is not directly conditional on being imprisoned.
By a curious coincidence, on the day that all this was going on in Britain Spanish TV news had a piece about Spanish prisons. It was PR — we saw an astronomical society taking their telescopes into a prison in Valencia to show the inmates the heavens and we saw the Teatro Real (Royal Theatre) performing Cabaret in Madrid. We saw a prisoner working with a book on the infinitesimal calculus and we saw prisoners identified by their forenames saying how glad they were to be given a chance in life. We saw a prison officer saying that they believed in rehabilitation rather than ‘the American model, which leads to riots’. As I said, it was putting a good face on things. I am sure that Spanish prisons have their unpleasant side, and that many prisoners care nothing about Cabaret or calculus (and there was a riot in a Catalan prison a couple of years ago), but the fact that this side exists and can legitimately be shown, and shown without raising populist hackles, seems to me to be a major difference when compared with the actuality and the ethos of the British view of imprisonment.
I agree. Very depressing. What surprises me, as an outsider, is that the UK Government seemed to be moving in a liberal direction on’indeterminate sentencing’ and ‘control orders’. It would appear my understanding on this was premature.