Tuesday, 22 May 2012

Votes for prisoners?

The government has six months to obey a directive from the European Court of Human Rights to "bring forward legislative proposals" to allow prisoners to vote. This follows today's ruling (pdf) in the Italian case of Franco Scoppola, a convicted murderer who, ironically, lost his appeal against his own inability to vote in Italy.

Italian law is, in some ways, harsher than that in the UK. Here, prisoners currently serving sentences cannot vote but, having paid their debt to society, regain all the rights they had before being sent down. That is, partly, because disenfranchisement is not a separate punishment but merely a consequence of imprisonment. Prisoners can't vote, any more than can children, the mentally incapacitated and members of the House of Lords. In Italy, however, disenfranchisement is a distinct penalty, imposed on those sentenced to terms of least five years and continuing long after their release. Indeed, the ban is for life, though it is possible for ex-convicts to have their civil rights restored if a court decides that they have earned it. Which the court is free not to do.

The European Court of Human Rights today ruled that permanently depriving offenders of their right to vote was not disproportionate or indiscriminate, and "pursued the legitimate aims of preventing crime and enhancing civic responsibility and respect for the rule of law and ensuring the proper functioning and preservation of the democratic regime." But it took the opportunity to reaffirm its belief that the loss of voting rights by currently serving UK prisoners is a breach of their fundamental human rights.


The United Kingdom Government, intervening as a third party, considered that the Court’s findings in Hirst (no. 2) v. the United Kingdom were wrong. In that case the Court had found a violation of Article 3 of Protocol No. 1 because of the general, automatic and indiscriminate nature of the measure depriving convicted prisoners of the right to vote. The Court noted that, since that judgment, nothing appeared to have changed at the European and Convention levels that might justify the re-examination of the principles set forth in that case – on the contrary, if anything, the trend was towards fewer restrictions on convicted prisoners’ voting rights. The Court accordingly reaffirmed the principles set out in the Hirst (no. 2) judgment, in particular the fact that when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they were serving a prison sentence... it was not compatible with Article 3 of Protocol No. 1.

The Court considers it outrageous for prisoners to be denied the vote, as they are denied other, more basic, human and civil rights, while they are serving their sentence. This is disproportionate and indiscriminate. Yet it's fine for Italy to have a system under which anyone who has been sentenced to five years or more loses the right to vote for their entire life. What kind of crazy is that?

Being sent to prison entails losing a number of normal rights, privileges and obligations besides the inability to vote. The most obvious deprivation is that of liberty, but it is by no means the only one. Prisoners cannot choose their manner of work, nor demand to be properly rewarded for any work they are compelled to perform. They may not live where they choose, or go on holiday. They may not enjoy sexual relations with their spouse - a particularly harsh deprivation, in that it equally affects the partner (who may be entirely innocent of any offence) and not infrequently leads to the permanent destruction of relationships. Prisoners lose their right to privacy (for example, to communicate with the outside world without those communications being monitored). Their rights to free expression and free association are, at best, severely circumscribed. They have to follow orders. On the other hand, prisoners have their food and shelter taken care of, and they are given educational and training opportunities often denied to those on the outside.

Compared with more basic human and civil rights, the loss of an opportunity to make a mark on a ballot paper, if there happens to be an election, strikes me as a fairly trivial loss. The right to vote is a precious one, of course, but it would be a rather strange person who would prefer to be allowed to vote than to have sex. Or to go where they liked. Or to earn a decent wage. I'm especially baffled that "votes for prisoners" seems to have become a great liberal cause.

If the right to vote is so basic a human right, moreover, why should it be restricted to citizens? Foreign nationals, unless they hail from Ireland or the Commonwealth, are not permitted to vote in British Parliamentary election, even if they have lived legally in this country for decades and never committed a crime. Why should their permanent deprivation - and they may have perfectly good reasons for preferring to remain citizens of their country of origin - be considered less objectionable than the temporary deprivation of those currently serving a prison sentence for a serious breach of society's laws?

But to pose that question is to suggest the true answer: the right to vote is not a natural right but a civil right. It does not properly belong to the sphere of fundamental human rights at all. Rather it is bound up with the constitutional settlement of the nation. The European Convention (Protocol 1.3) provides for "regular, free and fair" elections. It does not specify the franchise. All persons under 18 are currently unable to vote, however intelligent or interested in politics they may be, even if they are (unlike convicted prisoners) working and paying taxes.

If voting is such a fundamental right, on what basis it is withheld from teenagers? More to the point, if it is such a fundamental right, why is it not asserted to be such in the Convention or its Protocols?

There are, no doubt, good arguments for allowing prisoners to vote. Some claim that it may help with the process of rehabilitation. I can't see myself why it should. A prisoner who really cares about being able to vote is more likely to be encouraged towards rehabilitation by the prospect of early release for good behaviour - and thus earlier restoration of his or her voting rights - than if nothing has been lost to begin with. It's said that refusal of the franchise places convicts out of society. Well so it does and, many would say, a good thing too. In any case, this is a political argument, and should be had in Parliament and in the court of public opinion. It is not the sort of question that should be left to unelected judges, especially not to judges who are not part of this country or its legal system.

I hope that MPs have the good judgement to vote down whatever proposals the government feels obliged to put before them. I really do.