I read the Baron Granthams OP-Ed in The Times with great interest as everyone I am sure many did owing his not inconsiderable expertise. His analysis of matters of the law is meticulous but in areas of morality and legitimacy I find his arguments much less persuasive and so following the debate in the house and questioning by the the luminaries of the House of Lords General Committee I wish to now take the case to the country.
But before I do I take issue with a number of points made in that Op-Ed, firstly the suggestion that Hirst should be seen as a floor. I content that Hirst as a ruling only sets out principles in which a parliament should consider limitations on the right to vote for prisoners. In this we see that Hirst isn’t a floor but instead boundary conditions upon a continuum of acceptable solutions. I shall set out later, why I my proposal sets bar where it is and also why parliament and not the courts needs to be the one to do the setting.
My last quam is the Lord Grantham’s suggestion that 50% of the house of commons does not support the proposal. This I fear is a weak argument, not only do neither of us know how MPs will vote but even if a majority of our elected representative are opposed to the bill then it is still right that they consider it and voter may evaluate them on that basis. And thirdly his calculation of over 50% of the house opposes prisoner votes relies on the LPUK opposing it. But I know very well from discussions with cabinet colleagues, and backbenchers across government as well as talks outside of government. That this bill has wide ranging support, and much to the consternation of the noble lord some members support an even harsher policy than the one that I am proposing.
But turning to the substance of the question, I feel it is inaccurate to speak of suffrage as “universal” in any context while retaining complete accuracy, indeed the word does not appear in Protocol 1 Article 3 for very good reasons it is wholly unworkable legally, and it was purposely excluded from the text by British negotiators no less! In no state is the right to vote enjoyed by citizens without qualifications, and there are many different legitimate grounds for qualifying the right in exceptional circumstances. I believe prisoners who have committed a sufficiently serious crime to have been handed a long custodial sentence to be one of these circumstances.
The qualifications put in place required wildly differ from state to state as does circumstances, culture and history. With respect to prisoners even within signatories of the ECHR there is huge variety, some justifications such as France allows a trial judge to disenfranchise based upon the proportionality of the crime, Germany applies a system whereby crimes against the state and democracy are punished with disenfranchisement, in Italy prisoners with life sentences may be permanently disenfranchised and lesser sentences result in shorter periods of disenfranchisement and Malta disenfranchises all prisoners sentenced for a period greater than one year. And there are many more unique systems as well as other countries which like us currently have full suffrage for prisoners.
This is all to say, this is not a question of law, the ECHR did not impose upon Britain an obligation to pass the Human Rights Extension Act 2015 it only it explicitly stated in its conclusion that;
“it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment.”
The obligation was to simply bring forward legislative proposals that fulfilled the courts requirements for proportionality and a legitimate aim.
What the Human Rights Extension Act 2015 did was catapult Britain from one extreme to another. Parliament has never been given the opportunity to consider anything but these two extremes and I am glad that the proposals that I have brought before the house will remedy this lack of consideration.
The government’s plan will give the house an opportunity to consider for the first time, legislation that keeps us a compliant member of the ECHR, maintaining our standing on human rights internationally. While rationally qualifying the right to vote.
This is not something that should be ignored or left to the courts indeed the courts themselves have told us that they cannot decide where on the spectrum of possibilities we should be. In the landmark Hirst ruling the ECtHR itself said:
The Court accepts that this is an area in which a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on prisoners’ right to vote can still be justified in modern times and if so how a fair balance is to be struck.European Court of Human Rights
The current system is patiently unacceptable it to me, David Cameron said the thought of prisoner votes made him feel sick. While I am not queasy I feel a deep moral sense that those who break the law and violate the norms of our society, the rights of others or our shared institutions should not be in a position to make the law. My thesis is that laws and rights only have meaning within the context of a community that accepts them, the most serious offenders have ignored those and caused great damage. They should not automatically qualify to vote, doing so retains agency over the lives they have wreaked.
But let’s be honest Dave wasn’t physically sick at the thought of people convicted of misdemeanors voting. What’s galling and difficult for many good decent Britons to swallow is the idea that the absolute universal inclusion of prisoners gives the same voting rights to unapologetic murderers as for them. This sense of equity between two people who should not be treated as equal because of their different choices and actions, erodes our civic responsibility people see this and question the value of the right to vote. “If that person is worthy of the right to vote, why should I bother? Or why should I put time into making a good choice?” This harms our democracy and the rule of law.
Rationally qualifying the right to vote can be a powerful symbol against democratic malaise, that reinforces the value of the right to vote by showing that we remove it in certain circumstances because certain people should not exercise it – and we go to the bother because it is a valuable part of our democracy.
The social rejection of serious crime reflects a moral line in the sand that safeguards the social contract and the rule of law. This point is underlined by how we police in this country, we do not police by SWAT cars or force, we police by consent, working with communities not suppressing them. It is critical for this approach to work that crime is socially condemned and that we maintain buy into society. The promotion of civic responsibility may be abstract or symbolic concept, but it is a primary goal of government and fundamental to our society it should not be looked down upon for being abstract or symbolic.
Prisoner votes threatens this balance, it fails to attach a civic consequence to serious crime to clearly condemn it. It treats prisoners as universally worthy of voting and influencing our society when clearly there is variation and nuance.
For these reasons our proposals take a middle road between blanket bans and a blanket right to vote. We will stop people with long custodial sentences of over six years from voting, this will prevent those who committed serious crimes and violated significantly the rights of their fellow citizens from being able to vote.
We also note that forgiveness is a key conservative value and a fundamental purpose of the justice system aside from reparation or punishment is rehabilitation. Therefore we have included in the proposal a mechanism by which prisoners who are sentenced to greater than a six year term may apply for re-enfranchisement provided that they meet criteria such as being remorseful. We think this is a fair compromise and we do not wish to prevent prisoners from having an opportunity for civic engagement provided that they are on the path towards rehabilitation and indeed hope that this may incentivise some prisoners to more strongly engage in rehabilitation programs out of a desire to reacquire the right to vote. And irregardless of the success of our proposals in the voting lobbies, we as a government are committed to reducing crime through rehabilitation. We will reduce overcrowding and improve access to prison libraries. We might not feel that all prisoners deserve the right to vote absolutely, but we equally believe that every prisoner should be given the best opportunity to turn their lives around.