Depriving prisoners of their right to vote: an imaginary dialogue
On 10 February 2011, Jack Straw co-sponsored a resolution in the House of Commons condemning the European Court of Human Rights for declaring Britain in breach of the European Convention on Human Rights by depriving almost all prisoners of their right to vote. Recently, Yvette Cooper, Labour shadow Home Secretary, also committed the Labour opposition to support for the ban on prisoners voting. If, improbably, I had a chance to debate the issue with Jack Straw, our conversation might go something like this:
BLB: Mr Straw, in February 2011 when you spoke against restoring to any prisoners the right to vote, all you did was recall that whenever parliament discussed the issue, it always came down in favour of the ban. You didn’t attempt to justify it: why?
JS: It’s obvious. Anyone who commits a crime loses the moral authority to vote.
BLB: That was an argument used by the Labour government in 2005 in the European Court to justify preventing prisoners from voting. But the European Court found that a prison sentence couldn’t automatically remove a person’s other unconnected rights apart from the right to liberty. There are many who behave in an antisocial manner – tax evaders, for example – but who aren’t in jail: should they be disqualified from voting too? Once the right to vote is made conditional on a citizen’s morals, as defined by the state, you erode a basic foundation of democracy. Universal adult franchise should mean what it says: all adult citizens have the right to vote and the state has no right to remove it from any arbitrarily selected category of people, however obnoxious and unpopular they might be.
JS: Deprivation of the right to vote is part of the prisoner’s punishment, as enshrined in UK law.
BLB: But that just describes the present situation: it doesn’t justify it. Anyway, what kind of punishment is it? Are you seriously suggesting that the threat of losing one’s vote deters people from committing crimes? Or that losing one’s voting rights assists rehabilitation, or discourages re-offending?
JS: It’s clear from the opinion polls, and reflected in many votes in Parliament, that public opinion would be deeply offended if prisoners were allowed to vote.
BLB: Yes, I remember David Cameron saying that the thought of “giving” prisoners the vote made him physically sick. But the European court stressed in its judgement that there was no place under the Convention for automatic disfranchisement based purely on what might offend public opinion.
JS: Maybe so. My main argument in the 2011 debate was that this should be a matter for the British parliament, not for any international court. The judgment against us was purely a matter of interpretation of the Convention: there is nothing in the Convention explicitly giving prisoners the right to vote.
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BLB: But when parliament voted to set up the European Court, it accepted an obligation to abide by its judgements, including interpretations of the Convention. We can’t pick and choose between the Court’s rulings, complying with some and ignoring others. We should champion the rule of law.
JS: Well, I suppose we shall eventually have to do something to comply with the judgment of the Court, such as giving the vote to prisoners serving very short sentences for minor offences. But for most of us even that will stick in the gullet.
BLB: You talk of “giving” the vote to some prisoners, but the right to vote is not yours to give. All prisoners have that right in a democracy: you are taking it away, and you still haven’t offered any justification for doing so, except that not doing so would stick in your and David Cameron’s gullet. Don’t you see that allowing, indeed encouraging, all prisoners to vote could be quite an important element in their rehabilitation and reform, by bringing it home to them that even in prison they are still citizens, with both important unconditional rights and equally important obligations?
JS: As I pointed out in the 2011 debate, I have never heard of any prisoner complaining about losing the right to vote. I doubt whether any but a tiny percentage of prisoners ever voted before going to jail, or are likely to vote after they come out.
BLB: All the more reason to include the duty to vote in the re-education of prisoners to be good citizens on release. Here is a classic example of the Labour Party in Parliament – One Nation Labour just like New Labour – failing to stand up for the rights of one of the most vulnerable, underprivileged and voiceless sections of society, obviously because it fears being labelled ‘soft on crime’ by the tabloids and the Tories. Isn’t it time that Labour gave a lead to public opinion, instead of pandering to the most primitive and reactionary elements in it?
JS: Look, you seem to forget that I am a qualified lawyer, and a former Foreign Secretary, Home Secretary, Justice Secretary and Lord Chancellor (among other high offices) in a Labour government that won three elections running. What are your qualifications for contradicting me on a legal and political issue like this?
BLB: Sir, indeed I’m not a lawyer, but I don’t regard this as primarily a legal question. I think all prisoners should have the vote, regardless of the European Court. Even if Parliament has to restore voting rights to a limited category of prisoners, and even if that satisfies the Court, I don’t think it would go far enough. I still haven’t heard a single argument for depriving any prisoners of their right to vote. As a lifelong Labour supporter, I am dismayed by Labour’s position on this.
JS: You’re entitled to your opinion. I have more important things to do than continuing this fruitless conversation. I have New Labour’s legacy to defend against the occasional assaults of my good friend David’s young brother. Goodbye!
Brian
Footnote: I have placed on my website a short paper providing a selection of references to documents and quotations from them relating to the issue of prisoners’ right to vote and the judgment against Britain of the European Court of Human Rights. This is at https://barder.com/notes-on-the-question-of-prisoners-right-to-vote.
“Anyone who commits a crime loses the moral authority to vote.”
A lot of Britain’s problems stem from the Angst inevitably involved in working out moral philosophy from first principles, as Macaulay pointed out. Morality is controversial. Laws and constitutions do at least set out to be objective and above personal interpretation, so the answer ‘It’s the law so there’s no more to be said,’ should be enough for anyone. Sadly, it isn’t, as we see here in benighted Catalonia.
Brian writes: Thank you for this, Peter. I’m reluctantly bound to say that I don’t share your enviable faith in the unquestionable objectivity and moral inviolability of our laws. On the contrary, I regard it as the duty of every thinking citizen constantly to question them and consider how they might be either improved or beneficially repealed. I would hate to think that Angst, or at any rate concern, over the morality of the way we’re governed is uniquely a British property, although mercifully few of us have to work out our ethical philosophies “from first principles”, whatever Macaulay may have said.
Prisoners rights to vote, should we allow a person who has raped a child the right to vote, not sure I’d want him to breath never mind vote, should we allow Ian Brady the right to think he is human by allowing him to vote, keep ing the bloke alive is to much for me. Should the lady who has not paid her council tax have the right to vote, well yes.
It does depend on what they have done and how long they are in jail. Simples.
Brian writes: Thank you for this. But I’m afraid that it’s not as ‘simples’ as you suggest. Your implied suggestion that prisoners’ right to vote should depend on the degree of moral delinquency involved in the offence[s] for which they have been incarcerated, presumably as assessed from time to time by governments and politicians, is directly contrary to the basic principle that in a democracy we have universal adult suffrage, and that the right to vote is not conditional on the approval of governments or politicians, a proposition that is quite unacceptably and obviously open to abuse; and if abuse is possible, be sure that it will happen. Unfortunately I suspect that something very much like what you suggest is the likely outcome of the current agonising by the government and parliament in the wake of the ruling of the European court.
Whereas my own imaginary conversation with JS and YC I would wish to speak as follows:
“I must first declare an interest, in that for almost 60 years now I have been incarcerated in special electoral prison institutions known as ‘Safe Constituencies’. It surprises me that the two major parties in Parliament have not realised that, among the countless other opportunities for political skulduggery provided by the First Past the Post system, lies a perfect solution to your present problem of votes for prisoners. The circle can be squared by the following action. All prisoners should now be accorded full voting rights as defined under the electoral system obtaining in the UK, thereby satisfying the requirements of the European Convention on Human Rights. For these purposes prisoners should, however, nominally be scattered, in small groups, around a nationwide selection of prime Safe Constituencies, shared equally among Labour and Conservative seats, where their votes can be guaranteed to have absolutely no effect on election outcomes, thereby satisfying your own political requirements.”
Brian writes: Thank you for this, David. You make a very interesting point, although I think it might be difficult in practice to force even prisoners to cast their votes in constituencies other than those where they last had a home! Unfortunately, though, the point you have so amusingly made is a long way from the subject of this post, which is whether (not where) prisoners should retain their right to vote in parliamentary elections.
Right on. The killer point is that all sorts of people pay fines, do community service, are sacked but not jailed, are jailed years later but have voted before…so what is it about prison per se that blocks voting? Full disclosure: I was jailed several times in the US for acts of civil disobedience, and would Cameron be sickened if I voted during those times behind bars? On one of those occasions I was sentenced to three years but was freed when the law proved defective and my sentence was expunged. But during that time inside I would have been stopped from voting in the UK. What would Cameron say to that?
Brian writes: Many thanks for this wonderfully exotic comment. I bet there are very few readers of this blog who could match it!
One of my Austrian post graduate students was amazed that prisoners didn’t have the vote.
The most important point to me is that UK must respect the rulings of the judges even when it doesn’t like them or thinks them daft.
Brian writes: Thank you for this. I entirely agree about the absolute obligation to respect and comply with the rulings of judges, whatever one thinks of them. I’m astounded that a British government can seriously intend to offer parliament, in a formal draft Bill, three options of which one entails defying the judgment of a Court with whose findings we are legally obliged to comply — and that it seems highly likely that that is the option for which an overwhelming majority of MPs will vote. Beyond belief! If they have any self-respect, the Law Officers at least, and half the Cabinet as well, should resign rather than accept being tarred with this noxious brush.
Let me say first that i’m in favour of “giving” prisoners the right to vote.
On the other hand, if you’re convicted of some crime, it’s not unusual for you to be temporally deprived of some of your normal “rights.”
What’s to stop deprivation of the right to vote being part of your sentence?
Brian writes: Thank you for this. What’s to stop it is the basic principle that no-one, least of all the most defenceless and vulnerable in society, should be deprived of his/her rights without a compelling reason for the deprivation, and since (for the reasons explained in my post) deprivation of the citizen’s right to vote would actually be inimical to the rehabilitation of the prisoner, there can be no good reason for depriving him of a right which is entirely compatible with deprivation of liberty.