Prisoner’s Voting Rights: Constitutional Implications at their Finest

(Image Source: http://www.theguardian.com/politics/2013/oct/16/votes-prisoners-supreme-court-rejects-appeal)

– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

The European Court of Human Rights (ECHR) ruling that embodies more than the question of prisoner’s rights to vote in the UK is the case of Hirst v United Kingdom ((2006) 42 EHRR 41, [70]). It was a ruling that sparked controversy in 2005 and has set an eight-year resistance against a ruling that has been followed by an incredible 2,354 ‘clone’ cases of people claiming an infringement of their human rights – thereby forcing the question ‘should prisoners be allowed the vote?’

Regardless of your answer it is easy to see that, in principle, a blanket ban is somewhat immoral. It seems unconstitutional to withhold a right that is crucial to the continuation of democracy from a group of people only on the basis that they are part of that group. Arguably, comparisons can be made to the mistreatment of people based on their gender, race, or belief; if it is immoral to unequally treat people based on such groupings, then is it not immoral to disenfranchise prisoners?

These examples, however, are incredibly general and do not follow similar patterns to the disenfranchisement of prisoners. Take someone’s gender and race, obviously these are dependent upon biological circumstances, as opposed to an active decision. Beliefs are born from socialisation, which can influence action – but people are imprisoned for actions against the state, not the beliefs that may or may not influence that action. Prisoners are sentenced for their actions against the state and consequently are, as a group, disenfranchised for those actions. Allowing prisoners the right to vote in the democratic society that they have committed a crime against undermines the idea of taking responsibility for one’s actions – with civil responsibility being crucial in the structure of a healthy democracy, undermining such a concept is counterproductive to the sustainment of democratic principles.

Outside of constitutional and moral considerations are the wider implications of the European Union (EU). The financial implications seem to be the first at hand as the Strasbourg court could issue orders of compensation as a result of this failure to follow the ruling of the UK courts; seen as though no damages have been awarded in such cases previously, it is open to theory and contemplation as to what financial loss this could cause the government and the taxpayer. Say, for example, if a mere £1,500 was awarded in compensation to all 2,354 prisoners; the government would suffer a loss of £3,532,500 in total (not including court fees). Dominic Raab, Tory MP, simply argues “the Strasbourg court can’t force Britain to give any of these prisoners the vote, let alone compensation.” He then goes on to say that it is a matter of “democratic principle” to let Parliament make such a choice – however, Parliament have been delaying this crucial decision for eight years, surely now is the time for the EU to step in? Regardless of whether or not Raab is correct, defying the issuing of compensation from Strasbourg would hardly benefit the current tenuous relationship that the UK has with the EU. With murmurs of referendum from the Conservatives, shouts of independence from UKIP, and a plethora of statistics scattered across the web stating the consequences of being remaining in the EU the pressure only mounts for action to be taken.

But by blatantly ignoring the ECHR ruling for eight years are we not – in the words of Dominic Grieve, attorney general – “creating a degree of anarchy in the international order that [the UK is] trying to promote?” Thorbjørn Jagland, the secretary-general of the Council of Europe, views England as a “founding father” of convention and a “leading nation on human rights”; and the UK’s refusal to co-operate with the convention they are said to embody undermines the foundations and values of the EU and threatens the UK’s EU-membership.

MPs have now made the decision to draft the Voting Eligibility (Prisoners) Draft Bill, which outlines three main options for allowing prisoners to vote: continue with the current blanket-ban that is in force (option one), allow those with sentences of four years or less to vote (option two), or to allow prisoner’s with sentences of six months or less to vote (option three). This Bill is clearly influenced by the political motivation to hold off threats from Strasbourg and not influenced by a motivation to alter, or grant, constitutional rights.

The political motivation is reflected in the Bill’s inflexible options, which fail to address the real issue of prisoners voting rights. First of all, it does not fully consider the crime committed and its context, only sentence length. The issue here being that there seems to be no clear reason as to why the limit was set at four years, or even six months. The inflexibility and general-nature of these options only lead one to believe that such legislation would only be enacted to allow the UK to attempt to maintain positive relations with the EU and not to respect the concept of human rights; this political move is a poor attempt to respect the value of the right to vote and only shows a lack of consideration of the real issue.

Perhaps it would be more constitutional to create a system where people are not subject to a blanket disenfranchisement, or disenfranchisement based on general sentence length, but a consideration of the crime and its context before disenfranchisement; which could lead to a disenfranchisement system based upon precedent as opposed to generalised sentencing. This proposition opens up room for further debate on how such a system would initially be judged and where the limitations of disenfranchisement should lie. Not to mention, the bill that the taxpayers would be footing to have the cases considered in court could be potentially enormous.

The question to consider in regard to prisoner’s voting rights is whether or not you consider the right to vote as a privilege or a human right. If you consider it a privilege then you delve into further questions of defining what would allow such a privilege; but if you consider it a human right then, considering that prisoners are human, then prisoners should have the vote – I feel it is fair to say that there is little deliberation about the definition of human.

Whatever your personal opinions on prisoners voting rights and the UK’s membership to the EU it is clear that these two issues would ideally be decided separately. However, given the eight-year long wait for action in consideration of the ECHR’s ruling and the distant proposals for a referendum these issues have become closely intertwined and something of concern to the UK public. In theory, the outcome here stands on the same grounds as the infamous Factortame decision (Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.2) [2002] EWCA Civ 932) – deciding a crucial constitutional decision for the UK and concerning the supremacy of UK Parliament over the European Union.