‘Denying prisoners the vote is a needlessly vindictive act’

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‘Denying prisoners the vote is a needlessly vindictive act’

Show of strength: Wandsworth prison. Pic by Andy Aitchison

Fifteen years ago, the European Court of Human Rights (ECtHR) ruled that the UK’s universal disenfranchisement of prisoners violated their human rights. A majority of the ECtHR’s Grand Chamber found that the ‘blanket’ nature of the ban violated Article 3 of Protocol 1, which obliges states to ‘hold free elections at reasonable intervals’. The court recognised that while prisoners could be disenfranchised, a more individualised approach was required, with the UK’s approach disproportionate in its effects.  This decision was greeted with derision by the UK government, with David Cameron, the then Prime Minister, saying that the thought of prisoners getting the vote ‘makes me sick’.

A feeling of nausea, however, does not give a prime minister the right to ignore a decision of the ECtHR. Nonetheless, that is what David Cameron’s government did. Not only did they refuse to engage with the decision of the court, they doubled down, with Cameron asserting in the Commons that ‘prisoners are not getting the vote under this government’.  This was a promise that he kept, with his government remaining firm in the face of decisions in Scotland and the Supreme Court, as well as further decisions in the ECtHR, all of which reiterated the need for the UK to ameliorate the voting rights of prisoners.

Since 2015, there has been little movement, with Westminster happy to watch the issue drift down into the depths, out of sight and out of mind.  Yet last Friday saw the Scottish Parliament dredge the issue back to the surface, passing Scottish Elections (Franchise & Representation) Act 2020 and enfranchising prisoners serving sentences of twelve months or less. Not only was this noteworthy for flying in the face of the nationalist philosophy that is currently prevailing in Westminster, but for being the first instance of Holyrood passing legislation via super-majority, meeting the two thirds threshold required for the Scottish Parliament to change the franchise.

While this shows that not all of the UK rejects its international treaty obligations, let us set that issue aside for the moment and focus on the substantive matter at play – why we disenfranchise inmates. This was an argument that the House of Commons refused to have under David Cameron, with the MPs aping the prime minister, preferring to focus on the visceral objections they felt to prisoners voting, rather than to engage with any rationale that lay behind the absolute prohibition.

Given that a significant minority of the country declines to vote, the loss of the right to vote can seem relatively benign.  With the majority of sentences incarcerating offenders for less than a year, for most prisoners, the odds of the sentence affecting the substance of their right to vote are extremely small.

This argument disguises the real issue, however, which is not one of pragmatics, but principle. The right to vote lies at the heart of a democracy, given to to every citizen upon reaching majority. It is not conditional on race, or creed, or intellect, but given unconditionally, symbolic of their citizenship.  In denying criminals serving their sentences the right to vote, we are implicitly telling them that their voice simply does not matter. They are non-citizens, stripped not only of their liberty, but of their status.

The logic behind this is that criminals have broken the social contract.  As members of society, we all agree to follow certain rules, the criminal law foremost above them.  Should we break this law, the contract necessitates that we should suffer the consequences, whether that be a cost to our social standing, our finances, our liberty, or, as here, our franchise.  While this may be the case, this argument forgets that all the other punishments are spelt out, handed down as punishment by the court.  Punishment, if that is what a denial of the vote is supposed to be, should be explicit.

This argument also disregards the fact that of all in society, prisoners are a group in desperate need of representation.  The nature of their existence is solely in the hands of the government, and as prison report after prison report has shown, prisoners are easy fodder, with cuts to prison conditions and rehabilitation programmes serving as red meat for the masses. As well as being sadistic, this attitude is counter-productive, with brutal prison conditions only raising the likelihood of reoffending, increasing costs in the long run.

Denying prisoners the vote is a needlessly vindictive act, designed to achieve nothing except sating the vengeful instincts of the people. It further disconnects the very people who most need to feel a part of society, isolating them and exacerbating the risk of their reoffending. For the government to pursue such a policy in the face of a court order violates the foundational principle of civil society, which is that all- even the government- are subject to the law.

So far, Johnson has shown little respect for the rule of law, preferring to belittle it and the judiciary.  He should take advantage of the path paved by Holyrood to show that his government can walk on more principled ground, rather than continuing to tread the path of least resistance, showing that the post-Brexit UK takes its international obligations seriously, and can be trusted. After all, as we enter the next stage of Brexit negotiations, this trust is something he will need more and more.