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Law breakers and lawmakers

Why prisoners should be able to vote.

Should those who are convicted of crimes so serious that they receive a custodial sentence be able to vote?

Should prisoners have the benefit of influencing the making and reform of laws that they have either admitted to breaking or been shown beyond reasonable doubt to have broken?

According to newspaper reports today, the blanket ban on prisoners being able to vote is at last to be lifted. The spin is that this is because it is too expensive for the government to remain in breach of its obligations under the European Convention on Human Rights (ECHR).

The European Court of Human Rights ruled back in 2005 that such a blanket ban was not acceptable under the ECHR. (The 2005 case was brought by the indefatigable John Hirst, who can take the most credit for keeping the issue of prisoners' votes alive.)

However, one should not take the government's protestations about financial costs at face value. Blaming the pesky expense of undeserving legal cases is a time-honoured excuse for anyone retreating from an otherwise unsustainable position.

David Cameron is said to be "exasperated and furious" at having to lift the ban. It appears that it was looked at "from every legal angle", but apparently there was no alternative.

Hogwash. That is simply not the legal situation. It is perfectly possible for the UK legislature to derogate from the ECHR, should it really want to. Indeed, the UK has done so before in respect of anti-terrorism measures. Of course, such a move would be extraordinarily illiberal. But it would not be impossible if the Prime Minister actually was "exasperated and furious".

Instead, the better explanation is that this is a liberal measure being implemented under the cover of illiberal noises. This is a far preferable approach to policymaking to that of the Labour Party from 2001 to 2010, which often did just the opposite.

And it is indeed a liberal measure. There is no sensible or normative basis for the casual and routine desocialisation (and sometimes dehumanisation) that constitutes our current criminal sentencing and penal regime. Future generations will be aghast that we somehow think the best response to antisocial activity is to make it structurally more difficult for people ever to socialise properly again. Deprivation of liberty should not mean deprivation of other rights.

(In saying this, I am not being sentimental about criminals. I have no qualms about someone being incarcerated – even indefinitely – if that can be shown to be for the safety of the public.)

There will now be questions about how lifting the ban would work in practice. Would the votes go to the prisoners' home constituencies, or will there be (literally) voting blocks in the constituency where the prison is located? (On Twitter, @PeatWorrier said that his personal preference, for maximum interest, would be for prisoner seats, along the lines of the old university constituencies.)

Can certain, highly serious crimes be omitted? Can electoral offences be omitted? And so on.

A great deal of detail needs to be worked out now that the blanket ban will be removed.

But the coalition government is to be congratulated for this liberal measure, regardless of its supposed "outrage". It is the right thing to do. And it is a pity that the deeply illiberal Labour government from 2005 to 2010 was simply not willing to do it.

In principle, those convicted of a crime so serious that they receive a custodial sentence should not be rendered outlaws or excluded from society.

Prisoners should generally have the benefit of influencing the making and reform of laws. After all, they also have an informed view on how laws affect people's lives, and – in any case – they are citizens, too.

David Allen Green is a lawyer and writer. He was a government lawyer at the Treasury Solicitor from 2003 to 2005. He blogs on legal and policy matters for the New Statesman.

35 comments

Ramel's picture

Fantastic! Now my say in the democratic process is worth no more than the average barrister, banker or or insurance salesman.

Gaijin san's picture

This is going to be appallingly multiple-hearsay but I was told recently at a lecture that the reason this ban had not been overturned by the Labour government was simply that they could see no political advantage to it - in short, not only were they unwilling to do what was right when that was unpopular, unless they could see a positive political advantage it just didn't get considered.

Some say we get the politics we deserve. Based on the years of Blair and Brown I hope for our sake that's not true.

Miriam's picture

If an innocent person was wrongly convicted and sent to prison and subsequently their sentence was quashed and they hadn't been able to vote in a democratic society during their incarceration, they would have had a fundamental right taken from them. They would also scream very loudly about this on release.

If I am not a prisoner, guilty of no crime and my right to vote is removed from me then one of my fundamental rights has been removed and I will scream to anything with ears that this is a travesty. (Thus rendering the society I am in to no longer be a democracy).

It is therefore a universal right to vote in a democracy, otherwise there are no rights at all, and no democracy.

If a person has been proven to be guilty of a crime then they are punished for their actions by having their liberty removed from them.

Their other rights should remain intact otherwise the rest of society which removes any other rights is no longer a society.

Nick's picture

I see no reason why prisoners should not be given the right to vote, although I think there should be exceptions for certain offenders who have committed say Murder, they should have no say. However, there are many prisoners behind bars for all kinds of reason, including some on remand and those who have been unfairly convicted. Ultimately, prisoners are not just inside to be punished, they are also there to be rehabilitated. It seems right to me that they should be able to express a view on what sort of society they want to belong to, that's part of rehabilitation.

Prisoners have plenty of time to reflect upon their wrongs when inside and should be able to vote on what happens in the world outside of their four walls.

We should not assume all criminals are safely locked up anyway, there are many who are on bail, there are many who have escaped detection and have yet to be caught. It seems wrong to withdraw the right to vote just because they are in custody. I think this is a justifiable human rights issue. There is no reason why the Trial Judge when imposing a sentence should not make a decision over whether the defendant should forgo their right to vote

Does_It_Matter's picture

The right to vote....yes, but conjugal visits no.

I wonder which of the two the average prisoner would prefer, given the choice.

swatantra's picture

... its more like '99% OF CONVICTED POISONERS VOTE TORY'.
The criminal fraternity have always been more inclined to the Right.

Nick's picture

"The criminal fraternity have always been more inclined to the Right"

Never a truer word said Swatantra, they are currently a fraternity 'running' this bloody Country!

To Tracy King's picture

My father has dementia. His bathroom is unfit for use. He receives no help from social services, indeed his social worker contact was recently cancelled. He cannot wash or dress himself. If he was a prisoner he could claim compensation for being forced to 'slop out'. But he's not. He's a law abiding citizen and the authorities can do whatever they like to him. What about the human rights of people who have not committed a crime?

Mike from Ottawa's picture

Just as a data point, in Canada, in 2002 a Supreme Court ruling on the Charter of Rights recognized the rights of all prisoners to vote. In the past 8 years, we've had a goodly number of elections and the sky has not fallen. Those Canadians who share jeremiah's desire to have prisoners denied the right to vote in order to make 'law-abiding citizens' feelings of superiority over prisoners have learned to cope. The choice of government in Canada has not been noticeably affected. Indeed the current Conservatives who've been winning since 2002 at the federal level are the 'law and order' party.

Folk interested in a canvassing of the issues could do worse than read the Supreme Court decision at http://scc.lexum.umontreal.ca/en/2002/2002scc68/2002scc68.html .

ang's picture

Why doesn't this govt help the thousands of law-abiding citizens, who have been disenfranchised?
Nothing in it for the Tories!

Philip's picture

In general prisoners should have the right to vote (a postal vote in the constituency in which they were last registered). They are deprived of their freedom, not their other civic rights.

However there should be limited exceptions and Parliament is entitled to define them in law. It has been suggested a conviction for electoral fraud should include deprivation of the right to vote during the prisoner's sentence.

I feel strongly that convicted murderers and those convicted of murder should lose the right to vote during their sentence; after all they have denied their victim inter alia their right ever to vote again.

Jailhouselawyer's picture

Good post David Allen Green.

Andrew's picture

"Fantastic! Now my say in the democratic process is worth no more than the average drug dealer, mugger or car thief. "

There's a name for that. Democracy.

swatantra's picture

Did you her that employees may Not get long service awards because long service awards discriminate against the young. Mkes you want to give up the will to live. The Law may well be an ass and common sense out of the window. Bring back Denning.

Stephen J Henstridge's picture

There are, potentially, a number of reasons why some of those convicted of breaking the law are confined to prison, and that's a debate for another time. But amongst those reasons, surely, must be the need to remove from society those deemed to be a danger to others; or to put it another way, they do not have the best interests of society in mind. If we do not trust them in this regard, why would we trust them to use their vote in the best interests of society?

JGB's picture

@Stephen J Henstridge

Arguably there are many people aside from convicts who have demonstrated they don't have society's best interests at heart. In fact, the more I think about it the clearer it appears that very few people have anyone but their own best interests at heart.
I shall spare you all from a list, as I'm sure you can make your own :-)

So I think a different argument need be made to support your view.

Personally, while I admit it feels distasteful to think of a convict having a vote, I can't see how depriving them of it will affect the purpose or effectiveness of punishment.

In fact we may be surprised to find that being a captive audience during an election (which if you forgive my flippancy, could well be punishment of it's own cruel and unusual kind), a vote during a spell of imprisonment may be the first time for many convicts to reflect on what society's best interest actually are, and may even be the first time they'd considered voting at all, which is a small step in the right direction and most assuredly in all our best interests, financially, morally and pragmatically.

Hans Castorp's picture

So, are we to have either:

- elections in several constituencies decided (as the numbers show many ones with prisons in would be) by prisoners i.e. those we have, as a society, determined should be outside society; or

- parliamentary seats for criminals, voted on by criminals.

Both are discomfiting, and I think undesirable. And I don't buy the soggy argument that voting will help reform prisoners one bit. To lean on a hackneyed saying: is it broke? Why fix it?

I disagree with the ECHR's idea of what human rights are. And I'm in good company: the right to vote is not, for example, in the UN's 1948 declaration.

I do not want MPs getting elected on the strength of promises they have made to criminals. And I do not want an "HMP MP" whose authority in the legislature (or even government) would be equal to that of my MP.

I also think it impossible to draw a line between which criminals may vote, and which may not. Many have mentioned murder here, but what about rape and other offenses against the person? In a capital society, what about offenses against property?

Voting is an extension of our liberty as free citizens - we choose your governors. The central precept of democracy is that it is the mechanism by which an individual may exercise power over the state, and thus have liberty - our governors do not rule us.

We adjudge some criminals to have trespassed society, and so their liberty is deprived. A prisoner's liberty, de facto and de jure, is removed.

Given that our society is a democracy, adding removal de suffragium (?) merely completes the prisoner's just loss of liberty. A prisoner is not a prisoner if he can weild the political power of a free citizen.

The idea that prisoners should be allowed to influence our society while being justly kept outside it I think offends the value of the vote, and undermines democratic society.

Another old saying goes: your right to swing your fist ends where my nose begins.

Similarly, a person's right to influence my democratic society ends where his offence against the precepts of that society begins.

---

A note on how this article is couched, which perhaps offends the old joke that there are two kinds of people in the world: people who divide people into two kinds of people...

DAG's articles increasingly view complex issues through a prism that polarises everything into "liberal" (good) and "illiberal" (bad), without any qualification of these terms. What, for example, would something "slightly liberal" look like?

I hope DAG is not catching fourlegsgoodtwolegsbaditis, a strain of which has long infected some of the writers at the NS.

I would have thought, on joining the NS stable, DAG might have troubled himself with an introductory piece of some sort. I did, however, just read his recent post about blogging on the NS (http://jackofkent.blogspot.com/2010/11/reflections-on-my-recent-new-stat...) in which he suggests that he is writing to a constituency (the Left - his capitalisation) who may not 'get it' when he deals with the subjects of free expression and abuses of power if it trespasses the natives' political sympathies. How patronising!

I for one get it DAG, it's just that your blogs on the fire strikes were wak. They failed to give define any terms of reference, and they failed to meet the spirit of your own definition of liberalism.

Which from your Jack of Kent website is pretty nebulous.

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Stephen J Henstridge's picture

@JGB

"...it appears that very few people have anyone but their own best interests at heart."

Yes, I agree, and accept your point. I know it's a slippery slope if we start trying to determine who is worthy enough to vote.

Luddite's picture

The Daily Mail future headline perhaps '99% OF CONVICTED PROISNERS VOTE LABOUR'.

Matt Greenall's picture

"It is perfectly possible for the UK legislature to derogate from the ECHR should it really want to"

Are you sure about this? In the Convention Article 15 it says derogation is permissible "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from the obligations under this Convention to the extent strictly required by the exigencies of the situation..."

I'm not sure that a signatory would be able to justify a derogation in this case.

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7...

swatantra's picture

They've forfeited their right to vote, whatever the level and nature of their crimes. To suggest its a question of HR is absolute tosh, as is their rehab process. Even those old lags on minor offences should wait 6 months or whatever until released.

Clam's picture

@Jeremiah "Fantastic! Now my say in the democratic process is worth no more than the average drug dealer, mugger or car thief.
This is a friggin disgrace."

You're quite right, Jeremiah, morons should also be deprived of their vote.

HLW's picture

To those against this proposal, should people who get caught speeding, or littering be denied the right to vote? After all they've shown they have no respect for the laws of this society.

@Michael's picture

There is an argument for it, but there are also arguments against. One might argue that those that seek to deny others their human rights forgo some of those of a citizen who has not been found to have transgressed in that way. After all, the greatest sanction by far is surely the removal of liberty from the prisoner. I think ultimately this one ought to be a moral judgement made by ordinary members of society.

What I have concerns about is to what extent unanswerable judges start usurping democracies. If it's a good idea for prisoners to vote then please let's have the debate, and let societies decide what is right for them. Frankly I find the tone of the piece rather anti-democratic in that it rather supports the notion that this is something that the population at large cannot be trusted with and that a different sense of justice than what the judges came up with.

It's also worth noting that there was a strongly argued minority report in the judgement. The views were by no means universal.

So if you have a good case, then make it publicly, get a party to support it, campaign for it. However, don't use an arbitrary interpretation and extension of a law beyond what it was originally aimed to achieve. The undemocratic extension of laws by unaccountable judges is not something that I feel is desirable. To use undemocratic means for what some consider desirable is, I feel, profoundly illiberal.

Mike from Ottawa's picture

Hans Castorp might be relieved to know there is an alternative to prisoners votes counting for the riding where they are imprisoned or for a prisoners' constituency. Under Section 251(2) of the Canada Elections Act, an incarcerated elector votes in the riding where they resided before incarceration, or where a spouse or relative with whom they would live but for their incarceration lives, or where they last arrested or last convicted (in that order as they can be ascertained). The result is that prisoners pretty much vote where they'd lived and where they'll likely return upon release and so their votes are spread about pretty much as other folk's are. So far, despite the evident fears of Hans Castorp, allowing prisoners to vote has not had any of the effects he envisions, at least in out here in the former colonies. I'm sure the Mother Country can manage to do at least as well as Canada has.

Acamar's picture

If someone gets sent to prison for a few weeks, why should they prevented for casting a vote affecting 5 years? And if by chance their sentence happens to just miss the election - is this fine? And if the same offence can be treated as a community order, then is that okay? And what about prisoners on remand?

Cavall de Quer's picture

When I first read that US prisoners lose their right to vote (and have very considerable difficulty getting it back after their sentence, I could hardly believe it, I found it such a shocking idea - and since the UK is following the US example and locking up ever increasing numbers of people (v.Nicola Lacey, "The Prisoners' Dilemma")especially for "crimes" like drug offences, which are not "wrong" in any definable way, just against arbitrary laws, ever more people will lose this right which, as many correspondents have pointed out ("Philip" on 4th November states the case particularly clearly)is not part of mere freedom to walk about.
I can only hope this lamentable state of affairs is remedied soon - I don't live in the UK and was horrified to see that the country on my passport behaves like this!

zsremrxc's picture

Everyone is missing the point... voting is a con... you can give the vote to anything,it will not make any difference to the outcome,this is a kleptocracy,democracy is a delusion.

RobG's picture

@HLW - Good point. But surely being caught is only half the story. Committing the act is what counts. Who can say they have never done that ? WOuld they relinquish their right to vote or is it only those who get caught ?
And where do we draw the line as to who gets to vote and who doesn't ?
Anti-social is anti-social. There can't be a convenient cut-off point for certain crimes. No-one gives out points for best or worst crime. It's all or nothing.

ang's picture

The change is only to do with money, but some commentators are hailing it as a brave move by the coalition. Bull-shit!
Even if you exclude the 'real baddies' ie murderers, rapists, paedophiles, you are still giving this right to criminals who have destroyed innocent peoples' lives, by terrifying them during a robbery, where they pretend to have a weapon, it is just as frightening and life-changing, believe me.

HLW's picture

That was kind of my point, that we already draw a fairly arbitrary line between which criminals are allowed to vote and which aren't.

Personally I feel the vote should only be witheld for offences such as treason and electoral fraud, so offences directly involving politics, kind of like an ASBO can ban someone from shopping in a certain shop where they have caused problems.

jeremiah's picture

Fantastic! Now my say in the democratic process is worth no more than the average drug dealer, mugger or car thief.

This is a friggin disgrace. This country is being railroaded by every decision taken in the name of "human rights"!

If you are sent to prison you should lose your civil rights and that includes your right to vote.

If you are a convicted felon in the US most states will not allow you to vote when you are released let alone whilst doing time!

swatantra's picture

The picture above shows a political prisoner voting, which seems fair enough, as long as that political prisoner was not also guilty of murder or multiple murders.

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