Thursday, 4 November 2010

Votes for Prisoners - A possible loophole?

The government's apparently reluctant surrender to the European Court of Human Rights on the issue of voting rights for prisoners has led to the usual unhelpful debate. Most noticeable has been the tangling together of two quite separate issues - whether or not giving votes to prisoners is a Good Thing, and whether or not the European Court of Human Rights (not, in this instance, the EU) has or should have the jurisdiction to impose its view on a supposedly sovereign Parliament. As is often the case, how one answers the first question tends to influence one's view of the latter; but they really are entirely distinct.

As it happens, I think it is perfectly reasonable in principle that the punishment of imprisonment should be accompanied by the loss of voting rights. It can be argued that allowing prisoners to vote would have pragmatic advantages - for example, helping to keep the incarcerated in touch with normal civil society, or giving inmates an opportunity to influence the policies of the government, which directly impact on their lives inside jail. I don't agree: for me, the inability to vote reminds prisoners of their debt to society and reminds the rest of the citizenry that the vote is something to be cherished; something bound up with being free. In any case, the deprivation is far less onerous than the deprivation of liberty.

It's an argument worth having. The trouble, here, is that we are not being allowed to decide this question for ourselves, through normal democratic processes. Instead, an international court, sitting in another country, has taken it upon itself to oversee the constitutional settlement of a sovereign state. Yet there's nothing in the wording of the Convention - which is concerned with individual human rights, not the technicalities of electoral systems - that implies any such right in the Court. Its decision here represents an obvious instance of juridical empire building.

A Parliament that has any pretensions to sovereignty ought, at the very least, to be able to decide its own composition, and the nature and extent of the franchise that elects it. It has been depressing to watch ministers, including David Cameron himself, wring their hands, express distaste and lament their inability to act. Do they really have no option but to implement the ECHR judgement? David Allen Green thinks that this may be a case of the Coalition government making illiberal noises to disguise a liberal policy change. In support of this, he claims that the government could choose to derogate from the European Convention on this issue. Unfortunately it's not so simple. Under Section 15, derogation from specific articles or stipulations is only allowed on grounds of an "emergency affecting the life of the nation" - a justification invoked by the last government when passing some of its anti-terror laws. The only way to break this particular article would be to ditch the Convention (and the Human Rights Act) altogether, a drastic step that, post-Lisbon, would also entail detaching ourselves from the European Union. Of course, there are many who would like nothing better. But that would be a drastic step to take merely to exclude serving convicts from the electoral process.

I've been reading, and scratching my head over, the 2005 judgement that caused all the trouble, Hirst v UK. (Hirst being the unpleasant and seemingly unrepentant killer whose champagne celebration of the announcement has turned many stomachs over the last couple of days.) I haven't been impressed. It strikes me, as it struck the several dissenting judges, as fundamentally flawed (or, to use DAG's favourite word, "misconceived"). The reasoning within it is embarrassingly bad. That's slim comfort to the government, though, or to the many members of the public who disagree with the jailbird franchise. The decision stands, however illogical it may be. The court may have exceeded any reasonable definition of its powers, but since it is the ultimate authority as to what its powers are, there is nothing that can overrule it (short of an amendment to the Convention itself, agreed by all 47 signatory nations - as Charon QC pointed out in a Tweet). The government could refuse to abide by the ruling, refuse to amend the law or pay any compensation that may be awarded in future to voteless convicts. But that would be bad for the rule of law, to which British governments have always paid great lip-service.

Or they could look for a loophole. I think I've found one.

First the bad reasoning. As the dissenting judges point out, the peculiarity of the provision being contested (Section 3 Protocol 1 of the Convention) is that it does not, unlike the rest of the Convention, confer individual rights. It does not say, as it might have done, that "Citizens shall have the right to vote unless legitimately deprived by a court of law", or anything of the kind. It merely says that there shall be free elections, by secret ballot, to enable the expression of "the opinion of the people in the choice of the legislature". It does not specify, nor attempt to specify, who shall be given the vote. Logically, if prisoners are to be included in "the people", why should legally resident aliens be excluded? Or children? Or, indeed, members of the House of Lords, who also don't get to vote in elections to the House of Commons? A sixteen year old in work and paying taxes - admittedly a rarer creature than used to be the case - has a greater part in civil society than a prisoner serving life.

The ECHR claims that the exclusion of prisoners en masse is "arbitrary". But it is less arbitrary than the exclusion of children, who may well be intelligent and politically engaged, or contributing financially to the state; and it is less arbitrary than the exclusion of resident non-citizens, who may have lived and paid taxes in the country for decades. It is not in fact arbitrary at all, because it is part of the punishment. Prisoners are not simply deprived of their liberty; they are also deprived, for the duration, of many of the rights and responsibilities of citizenship.

Imagine if it were the other way around, and the usual punishment for a serious crime was to be stripped of voting rights rather than being imprisoned. Would the ECHR dare to overrule that? Probably not, because the penalty would be imposed individually on each miscreant, just as driving bans are imposed individually on everyone convicted of certain categories of offence. Indeed - though the judgement specifically declines to spell out how such a rule would operate in practice - it is suggested that in future a voting ban might be imposed on certain categories of offender, such as those serving life. This, though, would be as arbitrary as a general ban on all prisoners. Instead of the class of all prisoners losing the franchise, it would be the class of all murderers.

This offers a clue as to the problem with the court's reasoning. It seems to have held that a convicted prisoner serving time belongs to an arbitrarily defined group. But he or she doesn't. Rather, a prisoner is a person labouring under legal disabilities - most obviously, deprivation of liberty - as a result of his or her own actions. And, crucially, the state's right to impose these disabilities is accepted on all sides. The ECHR appears to hold that the state may impose one kind of penalty (deprivation of liberty for a defined term) but may not impose another (deprivation of voting rights for a concurrent term) which most people would consider a lesser burden. This is utterly illogical. Their mistake is to imagine that the punishment of incarceration is limited to deprivation of liberty. In fact, deprivation of liberty is only the most obvious of several consequences of being sentenced to imprisonment. There is also (in many cases) loss of conjugal rights, loss of the right to earn a living, subjection to the orders of prison officers. Such deprivations breach rights enshrined in the Convention far more obviously than the loss of a "right to vote" that is not part of the Convention at all.

One possible get-out might be to redefine imprisonment so as to specifically include deprivation of voting rights, so that loss of franchise would become an explicit element in every custodial sentence. But I doubt this would work. I have a better suggestion. The crucial Section 79 of the judgement reads as follows:

As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It is true that the question was considered by the multi-party Speaker’s Conference on Electoral Law in 1968 which unanimously recommended that a convicted prisoner should not be entitled to vote. It is also true that the working party which recommended the amendment to the law to allow unconvicted prisoners to vote recorded that successive governments had taken the view that convicted prisoners had lost the moral authority to vote and did not therefore argue for a change in the legislation. It may be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless, it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern-day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.

The court appears to rely on this Parliamentary history when awarding itself the right to settle the question. In other words, it sees the expression of the will of Parliament as a highly relevant consideration. This being the case, it's a little strange that it should take so little heed of clear precedents. As the Minority noted, during the debate in 2000 on allowing remand prisoners to vote "had a majority of the members of Parliament disagreed with this opinion, it would have been open to them to decide otherwise."

Indeed. But the Majority's scepticism about whether or not there was a proper debate is not really the issue. What matters is that the ECHR stresses this perceived deficiency as one of the main justifications for its decision. If Parliament debated the issue in a manner that would satisfy the ECHR's definition of "substantive debate... in the light of modern-day penal policy" - followed, perhaps, by a free vote - then the ECHR would be deprived on an argument that it seems to find crucial. At the very least, the government would be able to claim that it had satisfied the requirements of the court.

David Cameron claims that the government has looked at the question "from every legal angle" and concluded that it has no room for manoeuvre. But I can't believe that they haven't considered the possibility of specific legislation along the lines adumbrated in the ECHR's own decision. Either they have been very badly advised, or Mr Green is right and ministers secretly want to give the vote to serving prisoners. It's hard to believe. But then so are increasingly many of this government's decisions.