The dilemma regarding the enfranchisement of prisoners is becoming a constitutional issue. There are two opposing moral positions. David Cameron has said "It makes me physically ill even to contemplate having to give the vote to anyone who is in prison." But the rule of law is about more than gut instincts. The UK government has an unequivocal responsibility to implement judgments of the European Court of Human Rights. If it refuses to bring forward plans to provide votes for at least some prisoners by Thursday of this week it will be in breach of its obligations.
In 2005 the European Court of Human Rights held that Britain’s "general and automatic disenfranchisement of all serving prisoners” was incompatible with Protocol 1 of Article 3 of the European Convention on Human Rights, which guarantees that states will “hold free elections”, although does not explicitly guarantee the right to vote. It was decided that the ban was "a blunt instrument [which stripped] of their Convention right to vote a significant category of persons and [did] it in a way that [was] indiscriminate." Following an Italian case on 22nd May (Scoppola v Italy), which held an "automatic disenfranchisement of all serving prisoners was incompatible with Article 3 of Protocol 1", the UK government was given six months to bring forward proposals to end the blanket ban in this country. Yet the British Prime Minister, despite the advice of his Attorney General, has clarified that he has no intention of conceding the right to vote.
Denying the vote to prisoners appeals to a motley group of those who would like
a harsher criminal justice system and Conservative MPs who see judgments of the
European Court of Human Rights as 'filthy foreign rubbish.' But the arguments don't stack up. To say
those "who break the rules shouldn't make the rules" is rather glib.
The right to vote is the right to have one's opinion weighed together with
others. It is not directly about legislation. Nor does the judgment say that
all prisoners should be given the vote. Prisoners are sent to prison as
punishment, not for punishment. The overriding punitive element of prison is
deprivation of liberty. It is not 'civic death.'
Giving prisoners a stake in society encourages them to take responsibility. Voting is an intrinsic aspect of citizenship and can become part of the process of rehabilitation. Voting is both a human and constitutional right. It cannot be interfered with except for a legitimate end. If it is to be part of the sentence then it is properly up to a judge to take it away and to make clear its connection with the offence. Voting has never been dependent on virtue.
The practicalities of voting for prisoners are not difficult. Remand prisoners already have the vote. As regards mechanics, postal votes are simple to operate. Prisoners could be registered at their last electoral address or where they can prove a demonstrable local link. Government has a wide discretion as to how to regulate votes in prisons "both as regards the types of offences that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law." Legally the government could change electoral law by a 'remedial order' under the Human Rights Act. The UK could follow the example of some European countries and recognise a blanket right to vote or, like France, make specific exemptions for a narrow category of offences where there is a connection between the crime and the additional punishment of removal from the electoral register.
There are other options. The government could define specific
classes of prisoners to be given or deprived of the vote. It could leave it to
judges to decide at the time of sentencing. It could restrict voting to those
sentenced for less than a specific period. It could provide for the right to
vote at the point of parole as the former Lord Chancellor, Lord Mackay,
suggested. This might be the minimum needed to comply with the judgments of the
European Court of Human Rights. Doing nothing shows a disturbing disregard for
the rule of law. Most worrying of all would be to offer a vote in Parliament
while giving a nod and wink to MPs to vote against enfranchisement as a way of
standing up against Europe.
At a time when voter apathy is leading to ever lower turnouts it is deeply worrying that the Government is putting more effort into denying prisoners the vote than in enfranchising the marginalised. Human rights recognise the dignity of the individual, independent of any grant by the state. Logically they precede the state and are ‘recognised’ rather than created by governments. Recognising the right to vote of prisoners would affirm the fact that although deprived of their liberty they remain part of society. It would prioritise rehabilitation over retribution. Perhaps the most important reason for affirming the right is the responsibility that we have to those whose rights have been violated elsewhere in the world. If the UK government picks and chooses over which judgments to implement, what moral or legal authority do we have to speak for those whose rights have been violated in other countries?