Tag Archives: Prisoners’ Rights

Paul Reid: Independence, the referendum, the franchise and prisoners: stormy waters ahead?

paulThe Scottish Parliament has started giving legislative effect to the Edinburgh Agreement that was signed in October 2012.  The first measure to be brought before the Parliament earlier this week was the Scottish Independence Referendum (Franchise) Bill.  It is a fairly short Bill, both in length and time: once enacted it will be automatically repealed on 1 January 2015 (the day by which a referendum must be held being 31 December 2014: Scotland Act 1998, sch.5, para.5A).  The content of the Bill is now largely uncontroversial.  The Edinburgh Agreement committed the Scottish Government to bring forward legislation to create a franchise for the referendum (para.4) and it was left to the Scottish Government to consult on extending the franchise to 16 and 17 year-olds and, if so minded, to legislate to enfranchise such individuals (para.5).  The Bill now does that.  Clause 2 sets out four conditions to be eligible to vote in the referendum: (i) the person is over the age of 16; (ii) the person is registered in the appropriate register; (iii) the person is not subject to any legal incapacity other than age; and (iv) the person is either a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union (the latter being defined in Clause 12 of the Bill).

Much of the Bill is then concerned with creating a register of young voters.  To be eligible to vote in the referendum a person must be on either the register of local government electors for any area in Scotland (cl.2(1)(b)(i)) or on the register of young voters (cl.2(1)(b)(ii)).  The former register is already maintained under section 9(1)(b) of the Representation of the People Act 1983 (“the 1983 Act”).  The latter is created by the Bill.  It must be maintained by each registration officer for his area (cl.4) and it cannot be published (cl.9).  Schedule 1 then applies, with suitable amendments, various statutory provisions to the new register.  The Bill also confers a general power on the Scottish Ministers to make “such supplementary, incidental or consequential provision as they consider appropriate” to give full effect to any provision of the Bill (cl.11).  At first blush that appears to confer fairly wide-ranging powers to the Scottish Ministers with such order being subject to the affirmative procedure in the Scottish Parliament.

All of that is important to the functioning of the referendum and to securing the Scottish Government’s stated aim to enfranchise 16 and 17 year-olds.  When reading the Bill, however, the provision that caught my eye was clause 3.  That provides: “A convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person.”  That looks very like a blanket ban on prisoners voting in the referendum.  When I turned to the Explanatory Notes that accompany the Bill, at para.9, the Scottish Government state: “Section 3 provides that convicted prisoners who are detained in a penal institution are debarred from voting in an independence referendum. Prisoners held on remand who have not been convicted will be able to vote, although they will need to do so using a postal or proxy vote. This is identical to provision made, in relation to parliamentary and local government elections, by section 3 of the 1983 Act. It has been included in the Bill because the UK Parliament is considering proposals to alter section 3 of the 1983 Act and the Scottish Government would not wish any alteration to apply for the purposes of an independence referendum.”  And the Policy Memorandum accompanying the Bill confirms this was a conscious choice (para.13): “The ECHR ruling (and human rights case law) does not relate to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014.” 

As is now well-known, section 3(1) of the 1983 Act is incompatible with Article 3, Protocol 1 (“A3P1” to use the same now-common shorthand for its sister provision ‘A1P1’) of the ECHR, it cannot be read in such a way as to make it compatible and a declaration of incompatibility has been made (Smith v Scott 2007 SC 345, and numerous subsequent cases as more fully discussed by Colm O’Cinneide in his post on this blog on 4 June 2012 and Jeff King on 18 May 2011).  The Westminster Parliament has thus far failed to amend the offending provision (beyond asking a committee to consider the options) and the domestic courts now recognise that it is outwith their power to push the matter further (Chester v Secretary of State for Justice [2010] EWCA Civ 1439 at [35] (Laws LJ)).

A3P1 provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”  Clause 3 of the Bill must be compatible with A3P1 to be within the competence of the Scottish Parliament (s.29(2) of the Scotland Act 1998 (“SA”)).  The key to A3P1 is usually seen to lie in its closing words: “…in the choice of the legislature”.  At the time of the 1975 referendum on continued membership of the EEC a challenge was brought by a prisoner then serving a prison sentence.  The Referendum Act 1975 defined the franchise by reference to those eligible to vote in parliamentary elections (s.1(3)), thus the disenfranchisement of prisoners contained in section 4 of the Representation of the People Act 1969 applied (that provision is in substantively the same terms as the current ban in s.3 of the 1983 Act).  An application was made to the Commission claiming an infringement of, inter alia, A3P1 (X v United Kingdom, Application No.7096/75).  The Commission ruled the application was inadmissible: “the obligations of the High Contracting Parties under [A3P1] are limited to the field of elections concerning the choice of the legislature.  The British Referendum on EEC membership was not an election concerning the choice of the legislature: It was of a purely consultative character and there was no legal obligation to organise such a referendum.”  Thus the EEC referendum of 1975 did not engage A3P1.  The same conclusion was reached when a challenge was brought against Austria in relation to its referendum on accession to the European Union (Bader v Austria (1996) 22 EHRR CD213).

It appears, therefore, that the blanket disenfranchisement of prisoners for the independence referendum is within the competence of the Scottish Parliament because the referendum does not engage A3P1.  That produces a bizarre result: a person has a fundamental human right to participate in the election of the Scottish Parliament but has no equivalent right to participate in a referendum on the possible independence of Scotland.  That conclusion appears to invite challenge.  And despite the language of A3P1, the matter does not appear as clear-cut as the Scottish Government may hope.  According to its preamble, the rights enshrined within the ECHR are “are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend”.  Elections are a “characteristic principle of democracy” (Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para.48) but as the United Kingdom is evolving referendums are becoming an increasingly prominent and important part of our democracy (e.g. the European Union Act 2011, the Localism Act 2011 (invoked for the first time only last week), the 2011 referendum on the voting system for Westminster and the promise of an in/out referendum on EU membership).  In other words, they too are becoming characteristic of our democracy.  In the same case (at para.51) the Court recognised that A3P1 had evolved since being adopted.  In Scoppola v Italy (2013) 56 EHRR 19 the Grand Chamber confirmed (at para.82) that “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle.”  There is no reason why that same presumption should not apply to a referendum.  In Zdanoka v Latvia, when considering how A3P1 could be restricted, the Grand Chamber explained (at para.115(c)): “In examining compliance with Art.3 of Protocol No.1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.”  Elsewhere in its jurisprudence the Court has recognised that Article 10 includes protections calling for the dissolution of the state (Incal v Turkey (2000) 29 EHRR 449) and Article 11 includes protection for political parties to advocate the same result through non-violent means (United Communist Party of Turkey and other v Turkey (1998) 26 EHRR 121).

It would be odd, to say the least, if the ECHR could be held to secure the right to promote the dissolution of a state through non-violent means but not the right to participate in a referendum to achieve that goal.  Such a conclusion is not readily reconcilable with the desire to secure “an effective political democracy” and could be characterised as an arbitrary measure, lacking proportionality that interferes with the free expression of the opinion of the people (to borrow the language of the Grand Chamber in Zdanoka).  Thus taking the ECHR as a whole, if it is to secure its fundamental aims, there appears to be a strong case for saying the Court should revisit the decisions in X v United Kingdom and Bader v Austria and allow A3P1 to continue its evolution and protect the right to participate in a referendum such as that to be held in Scotland in October 2014.

If the Court were to take that approach matters would then become very interesting for the Scottish Government.  If clause 3 of the Bill is incompatible with the ECHR then the provision is “not law” (s.29 SA).  That differs from the position that currently exists in the United Kingdom in relation to elections: although s.3 of the 1983 Act is incompatible with A3P1, it remains in force.  Assuming none of the law officers refer clause 3 to the Supreme Court prior to Royal Assent (s.33 SA), and there appear to be strong political reasons to believe that to be a safe assumption, then any challenge would be by way of judicial review.  There is currently no “leap-frog” appeal direct from the Outer House of the Court of Session (where any such challenge would necessarily begin) to the Supreme Court, only to the Inner House (sch.6, para.7 SA).  Only the law officers could refer a challenge direct to the Supreme Court (sch.6, para.33 SA).  One would expect such a reference to be necessary if any challenge is to be determined prior to the referendum taking place.  But if, applying the Ullah principle, the Supreme Court consider that it is not for them to make such a change to the interpretation of the ECHR then a challenge would be destine for Strasbourg and pre-referendum (or pre-repeal (cf. cl.14)) determination of the issue would be unlikely.

Leaving aside the competence of the provision, and considering the merits of the policy, the reasons why blanket disenfranchisement of prisoners is unacceptable in elections apply with equal, if not more, force to a referendum. The competing arguments are best captured by Laws LJ in Chester:

 “[33]   Opponents of this view would say, with some force, that it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process. It has to be remembered (though I doubt if it would be put this way in the course of political debate) that the vote of the stupid, dishonest, or malicious elector is worth as much as anyone else’s.

[34]     But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.

 Referendums are held on questions that are said to be so important that the elected representative should not take the decision without consulting the people.  Whether A3P1 applies to referendums or not, if it is accepted (and I recognise that it is not currently accepted by almost all politicians) that some prisoners should have a vote in elections, at least that same group of prisoners should be entitled to vote in a referendum.  It would be absurd if a certain group of prisoners were enfranchised so as to elect a legislature but not to vote in a referendum on a question which the legislature sought the views of the electorate. From the Explanatory Notes and Policy Memorandum it appears the Scottish Government sought to consciously avoid that very parity.

It is unfortunate that the Scottish Government seek to continue the blanket disenfranchisement of prisoners in relation to the referendum vote. But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation.  It is not in anybody’s interests to see courts involved in the run-up to the vote in October 2014 yet clause 3, as currently drafted, appears to take that very risk.

 

Paul Reid is an Advocate with Ampersand Stable
and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid,  ‘Independence, the referendum, the franchise and prisoners: stormy waters ahead?’ ,  UK Const. L. Blog (13th March 2013) (available at http://ukconstitutionallaw.org).

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Colm O’Cinneide: Prisoners Votes (Again) and the ‘Constitutional Illegitimacy’ of the ECHR

The relationship between the UK and the European Court of Human Rights is once again in the news. On the 22th May last, the Grand Chamber of the Strasbourg Court delivered its judgment in Scoppola v. Italy (No. 3), Application No. 126/05. This decision marks a potentially decisive moment in the long-running saga of prisoner voting rights. In essence, the Grand Chamber reaffirmed its ruling in Hirst v UK (No. 2) that a blanket and indiscriminate prohibition on prisoners voting was not in conformity with Article 3 of the First Protocol (the right to free elections). However, it also recognised that states enjoyed a wide margin of discretion when it came to regulating the circumstances in which prisoners should be entitled to vote. In particular, ‘Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’, as long as they refrain from imposing ‘any general, automatic and indiscriminate restriction’ (see para. 102 of the judgment).

In other words, the Hirst decision has been upheld, but the UK has been given room to manoeuvre in how it responds to this requirement. However, the UK government must bring forward legislative proposals to amend the existing blanket ban within six months. If it does not, then in accordance with the Court’s ’pilot’ judgment in Greens and M.T. v UK, the 2500 pending cases before the Court on this issue will be ‘unfrozen’, which in turn may expose the UK to multiple claims for damages.

The judgment in Scoppola has been excellently analysed in depth by a number of commentators: see in particular Adam Wagner’s posting on the UK Human Rights Law blog, Carl Gardner’s analysis at Head of Legal and Marko Milanovic’s comment on the judgment on the EJIL: Talk blog. As Joshua Rozenberg has argued, the Court has effectively extended an olive branch to the UK government, which it might be wise to accept. However, the judgment has also attracted the usual media outrage, as examined by ObiterJ on Law and Lawyers, with the Daily Mail describing the decision as representing ’Contempt for Democracy’. The Prime Minister has stated at Question Time in the House of Commons that the will of Parliament should prevail over the views of the Strasbourg Court on this issue (H. C. Debs. 23 May 2012, col. 1127), while Jack Straw and David Davis have in a letter to the Daily Telegraph called on Parliament to defy Strasbourg.

It appears therefore as if no easy resolution to the stand-off on prisoner voting rights between the Court and the UK is yet in sight. It has been just over one month since the Brighton Declaration, where as Mark Elliott has discussed on this blog the UK joined the other state parties to the ECHR in affirming the crucial role played by the Strasbourg Court in protecting human rights and rule of law across Europe and committed itself to respecting judgments of the Court. (See in particular paragraph 3 of the Declaration, which states in unambiguous language that [w]here the Court finds a violation, the State Parties must abide by the final judgment of the Court’.) The UK government thus appears to have got itself into a tangled mess. Its words and deeds in respect of the ECHR appear to be getting dangerously out of synch. Even if legislation amending the blanket ban on prisoner voting is laid before Parliament within the six month time-limit imposed by the Court, the Prime Minister’s comments will certainly have fortified parliamentary opposition to making any concessions on this issue. As things stand, the UK is still locked on a collision course with Strasbourg, unless a dramatic political change of direction takes place.

Much of the hostility directed towards the Strasbourg Court is based on a visceral distaste of giving prisoners voting rights. Famously, even contemplating this idea appears to make the Prime Minister nauseous. Given the quasi-sacred status accorded to the idea of universal franchise within the UK constitutional order (the doctrine of parliamentary sovereignty is now justified on the basis that the House of Commons is elected by popular vote), it is perhaps odd that Strasbourg’s mild request for amendment of the blanket disenfranchisement imposed on prisoners has attracted such a backlash. However, the rights and wrongs of this issue have been discussed before on this blog by Jeff King.

What has not been discussed in detail here or elsewhere is the argument made by Jack Straw MP, David Davis MP, Michael Pinto-Duschinsky, Dominic Raab MP and others that the Strasbourg Court is acting in a constitutionally illegitimate manner in insisting on a repeal of the blanket ban on prisoners voting, and that it would be a violation of democratic principles for the UK to defer to the decision of an unelected international court on such a manner. This argument drives much of the opposition to the Court’s rulings in this context. It also explains why David Davis and Jack Straw in their above-mentioned letter to the Telegraph have described these judgments as infringing ‘our constitutional rights’. It even underscores the call by Pinto-Duschinsky, Raab and others for the UK to consider withdrawing from the jurisdiction of the Court and/or from the Convention, which they argue would be a necessary and justified step if the Court fails to mend its ways and exercise greater self-restraint.

This argument that it is ‘constitutionally illegitimate’ for Strasbourg to rule against the UK on the blanket ban on prisoners voting is based on two distinct but inter-related elements. First of all, it assumes that the European Court of Human Rights has gone beyond the legitimate scope of its authority by treating the Convention as a ‘living instrument’ and adopting a teleological interpretative approach to its provisions. In its eyes of its critics, the original drafters of the Convention never intended it to be read in this way: as a result, the Court is abusing its authority when in a decision such as Hirst it interprets the right to free elections in Article 3 of the First Protocol as extending to cover the right to vote. Secondly, the assumption is also made that it is contrary for democratic principles for the UK to bind itself to follow the determinations of an unelected body such as the Strasbourg Court. However, both these assumptions are open to challenge.

To begin with, the argument that the Court is going beyond its mandate is open to question. As Danny Nicol has argued, the travaux préparatoires of the ECHR make it clear that there was no consensus among the original negotiators that it should be read in a narrow and minimalist manner (‘Original Intent and the European Convention on Human Rights’ (2005) Public Law 152-17). Furthermore, international treaty instruments such as the Convention are usually expected to be interpreted in a purposive manner, not by reference to the original intent of their drafters. In their letter to the Telegraph, Davis and Straw state that the job of the Court ‘is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less’, and go on to say that the Vienna Convention on the Law of Treaties requires that ‘international treaties must be interpreted as their drafters intended’. However, this appears to be a straightforwardly incorrect interpretation of international law. The provisions of the Vienna Convention are notoriously vague: however, Articles 31 and 32 make it clear that courts should focus on the ‘object and purpose’ of treaties, and that the intention of the drafters can only ever be taken into account in a ‘supplementary’ manner. The ‘living instrument’ approach adopted by Strasbourg is very similar to that adopted by other human rights bodies, as well as by constitutional and supreme courts in Europe and across the Commonwealth. Of course, views will differ on whether the Court got it wrong when it decided Hirst, Greens and Scoppola. However, it is by no means obvious that its overall interpretative approach is ‘illegitimate’.

Secondly, the argument that it is undemocratic for the UK to defer to decisions of the Strasbourg Court can also be challenged. The UK consented to the jurisdiction of the Court and voluntarily undertook to abide by its decisions. This would appear to be completely compatible in principle with the principle of democratic self-governance and national sovereignty: as Jeremy Waldron has commented, ‘[p]art of the point of being a sovereign is that you take on obligations’. Furthermore, as previously noted, Parliament is under no constitutional obligation to give effect to a Strasbourg judgment: it can choose to disregard any judgment of the Court, or even to withdraw from the Convention, at any time. If it does so, the UK may experience strong diplomatic pressure to change its mind from other states. Its international credibility may also be fatally undermined by a refusal to respect a judgment of the Court, as this would call into question its commitment to the principles of human rights and rule of law which it consistently demands that other states respect. However, Parliament, not Strasbourg, retains the final say.

This means that the current relationship between the UK and the Strasbourg Court would seem to be entirely compatible with democratic principles. The fact that the UK faces considerable pressure to comply with Hirst, Greens and Scoppola does not mean that the Court’s role under the Convention is illegitimate or anti-democratic: it simply reflects the fact that the expectation that Parliament should respect international law, human rights and the rule of law may at times require it to exercise its powers differently from how it would if left to its own devices. If anything, the Strasbourg Court could be seen as playing a positive role in enhancing British democracy: as Richard Bellamy (no lover of judicial supremacy) has argued, it helps to protect the rights of those who do not enjoy effective access to Parliament and the political process. It also helps to link democracy in the UK to democratic progress elsewhere, and makes possible a convergence of standards which elevates rights protection, democracy and the rule of law across the Council of Europe zone as a whole.

None of these objections constitute a full and complete answer to the Court’s critics. Neither do they establish a complete case as to why Parliament should defer to the Court’s views on prisoner voting. Opinions will inevitably differ as to when Strasbourg has crossed the line between law and politics, or when it has made a questionable decision. However, the claim that the Court’s position on prisoner voting rights is ‘constitutionally illegitimate’ seems to be seriously open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  

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Jeff King: Should prisoners have the right to vote?

I think they should, and want to explain why in a way that addresses the issue recently faced by the courts and by Parliament.  The prisoner voting saga culminated in the Hirst v UK (No.2) [2005] ECHR 681 case before the Grand Chamber of the European Court of Human Rights, and the nearly five hour debate on the floor of the House of Commons which ended with a 234-22 vote in favour of a resolution that “supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.”: House of Commons Debates, 10 February 2011, Vol 523, No.116, 493-586.  The saga, for Parliament, represented two distinct issues: whether the Strasbourg Court was exceeding its competency; and whether prisoners ought, as a moral and human rights matter, to have the right to vote.  This blog entry is concerned only with the second of these questions, but as it turns out, the status of the right to vote as a human right is highly relevant to the resolution of this moral issue.

The debate in the Commons was supposed to address that moral question in order to satisfy the finding in Hirst that the impugned 1983 law, which carried forth without debate a policy adopted in 1870, could not be justified as being necessary in a democratic society given that Parliament had not debated the issue in light of modern day penal policy: Hirst v UK, [79]; but see Joint Dissenting Opinion of Justice Wildhaber et. al., [7].  However, the Commons was almost entirely preoccupied with the question of whether Strasbourg had exceeded its authority or was staffed with incompetent judges.  Indeed, the matter swung so much that way, that the Attorney General was forced to remind the House of the point of the debate, eliciting the following hilarious exchange:

  • The Attorney General (Mr. D Grieve): ‘Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate of that issue that appeared to make the Court take the view that our ban was indiscriminate.’ (HC Debate, 513)
  • Chris Bryant (Lab): ‘Really?’ (513)
  • Ben Gumner (Con): ‘I am slightly worried by what my right hon. and learned friend said earlier about the purpose of this debate.’ (515)
  • David Davidson (Con): ‘Does the AG accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.[sic]] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote – or should it be decided by somebody else?’ (517)

So much for reasonable disagreement about the scope of the right to vote.  In fact, as Liora Lazarus has noted on this blog in her response to Graham Gee, it was almost impossible to find any discussion which acknowledged the existence of the right and tried to delineate its scope. Only a few could arguably have been said to address the issue that way: see Long (HC Debates, 532-33); Qureshi (535-36); Corbyn (538-39). In fairness, a few MPs did address the moral issue moderately squarely, and at times the debate was very impressive on all sides of the issue.  The most frequent argument against prisoner voting is that such criminals had broken the social contract: HC Debate, 527, 544, 563. One can be tempted here to get philosophically pedantic, and claim that no one actually signed any social contract, and that a ‘hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.’ (Dworkin: Taking Rights Seriously (1977: 17-18).  But what the MPs surely meant is that community life entails obligations of reciprocity, one in which the benefits of the state system and mutual forbearance come with the burdens of obedience to the rules adopted fairly by the community.  One can at once see the allure and limitations of this argument. It is among the better reasons for why we normally obey community rules (though not always, see Raz, The Authority of Law  (1979: Ch.12).  But it’s less convincing to those who have had poor life chances, and received a slim share of the alleged benefits of forbearance.  The link between inequality and incarceration is shocking: Wilkinson and Pickett, The Spirit Level (2010: ch.11).  And let it not be forgotten that due to exactly this type of reasoning, which essentially justifies depriving voting for life, one in eight African-American men is ineligible to vote in America: Cole, ‘Can our shameful prisons be reformed?’, NY Rev Books, 19 Nov 2009, §4.  The fact that Britain tailors the disenfranchisement to the prison term is less cruel, but it borrows the same reasoning.

But I want to suggest that the argument is misguided for another reason. It implicitly fails to recognise a very relevant dimension of the issue, namely that the right to vote is a fundamental human right. It is not a privilege, like a driving license or access to the gym on weeknights.  The denial of this claim, including immediately by the two sponsors of the resolution, was a veritable leitmotif of the debate:

  • Jack Straw: ‘the issue before us today – is by no stretch of the imagination a breach of fundamental human rights. Rather it is a matter of penal policy…’  (HC Debates, 502; see also 493).
  • David Davis: ‘[T]here is an important point about not confusing the rights that are properly held by everybody who is a British citizen…with those much more circumscribed rights that are given to prisoners.’ ): (493).
  • Many others: 537, 539, 542, 545, 548, 553, 556, 557, 577 (debate on that point), 578.

But the right to vote is a human right.  Participation in self-government is the most basic expression of the principle of equality, a recognition that each person has basic, equal and presumptively irrevocable civic status in the society.  So the many MPs who denied that idea are wrong as a matter of law, and of morality: see in addition to Art.3, AP.1 of the ECHR, the International Covenant on Civil and Political Rights, art. 25(b); Waldron, Law and Disagreement (1999: Ch.11), and cf. Griffin, On Human Rights (2008: ch.15, but note 254-255).  (Some parliamentarians became exercised over the Court’s deriving a right to vote from the duty to hold periodic elections in Art.3, AP1 (see Hirst v UK, [56]-[62]) but that is hardly an interpretive stretch by comparison to equality rights for transsexuals or gays in the military).  The fact that it is a human right means it is among the most basic conditions for human dignity, autonomy, and citizenship.  One does not forfeit a fundamental human right as the default penalty for non-compliance with law.

So what does that mean then? I would say this: it is of the essence of basic human rights that they are qualified or limited, if at all, only for a legitimate or compelling state interest achieved by proportionate means (i.e. are necessary and strike a fair balance). I think this admittedly legalistic proportionality principle neatly encapsulates the presumptive or peremptory force, or urgency, we attach to rights in the realm of moral practical reasoning as well.  Limitations of those types of interests require special justification.

We recognise this principle in the human rights law relating to prisoners, who continue to enjoy nearly all their other human rights while in prison, to the extent that they are exercised compatibly with the basic regimen of prison life: Hirst v UK, [69].  But don’t we take away the prisoner’s right to liberty?  How can one say that this can go but the right to vote must stay?  This is believed to be the ace in the back pocket of those opposing prisoner voting.  It is a difficult issue, but the analogy breaks down upon close examination.

In Hirst, the UK offered three legitimate state aims: (1) it would punish crime; (2) it would prevent crime; and (3) it would enhance civic responsibility and promote respect for the rule of law: Hirst v UK, [50], [74]-[75]. Consider these aims and the deprivation of liberty.  As to punishment, it is notable that we do not incarcerate all offenders.  Typically it is only the more serious and violent ones.  In these cases, it is plausible to say that incarceration is necessary to punish, because it may well be the only acceptable social response that constitutes a grave or real sanction for the offender in the relevant circumstances.  Second, imprisonment at least arguably constitutes a deterrent, and, more importantly, it takes serious criminals off the streets or out of bank boardrooms where, if left, they would be liable to continue harming the public.  Third, the rehabilitation/civic responsibility function of prisons is sharply contested. But there is at least a prima facie argument that without rattling the jailhouse keys, it would be hard to induce offenders to take up activities designed to facilitate their constructive re-entry into civil society, including especially the conditions for release on license (parole).

Disenfranchisement cuts a poor figure next to the deprivation of liberty, at least when these aims are contemplated.  Taking them in reverse order, the idea that denial of the vote enhances civic responsibility is ludicrous.  It is the very negation of their civic capacity, a message of mandatory disengagement, and of revoked social status: see HD Debates, 576-577 (Lorely Burt MP (LibDem), a former prison governor); see also 536 (Qureshi (Lab)), 538-39 (Corbyn (Lab)), 545 (Brake(LibDem)).  Second, denying the vote will in no way deter people from crime, given that many prisoners would not vote anyway, and the loss of the vote would add nothing by way of discouragement, for most offenders, to the loss of liberty.  And the vote itself will not harm the public through the choice of harmful candidates.  (This public protection rationale may justify, in my view, disenfranchisement in cases such as post-war Germany or Rwanda, or in cases of electoral fraud, where there is a special proportionality akin to expulsion from a profession for misconduct). We thus arrive at the third argument – that it is necessary to punish the criminal.  I see why some will think this is punishment, even though for most prisoners it will not be.  But it is not necessary to punish, because the deprivation of liberty and subsequent difficulties in re-joining society constitute the real and effective forms of punishment.  It is true that it is additional punishment for those that care, but then that does not make it necessary, nor does it explain why some other form of additional punishment (no doubt more effective if pain is the goal) could not be sought.

At the very base then, my argument amounts to this: we do not give violent prisoners the vote because they “deserve” it; we do so because they are presumptively entitled to vote as a basic human right, not as a privilege, and we have no good argument for saying it is necessary to take it away.

Jeff King is a Fellow and Tutor in Law at Balliol College, Oxford. 

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