Voting is a basic right. In a democracy, votes cannot be a luxury granted to us by politicians for good behaviour. Universal suffrage is fundamental to the legitimacy of state power.
Why do we put people in prison? For public safety, of course—to keep dangerous people from causing more harm. We hope to deter crimes and punish those who have committed one. Most of us also think prison should serve as a place for rehabilitation, so that people leave less likely to break the law again.
Which of these aims is served by taking away prisoners’ right to vote? Not public safety, that’s for sure; exercising this democratic right won’t endanger others. And if you think losing the vote will be what stops someone from stealing a TV, you clearly haven’t understood the real causes of crime.
Perhaps it’s justified as punishment, then? This trap is made all the more tempting by that vicious, visceral anger we feel when faced with terrible crimes. But this is not the ground from which to make public policy—that way lies a medieval form of “justice” that inevitably denigrates all of our humanity. That’s why, when people go to prison, it is crucial they remain full citizens, still subject to our laws. We don’t allow them to be tortured or starved; why deprive them of the vote—a form of “civic death”? It’s unnecessary and serves no end.
Worse, it does serious harm. It further ostracises prisoners from society, actively undermining their rehabilitation into a responsible citizen. If prisoners want to participate in democracy, why not welcome their willingness to engage with the hope of a better society? That’s one of the things that voting is, after all.
The rest of the world is leaving us behind on this while some in Westminster stamp their feet and put their fingers in their ears. Human rights and democracy are two sides of the same coin; both necessary to the other and—when things go well—mutually reinforcing. Voting is a fundamental right, not a privilege, and it is time we remembered that.
Voting is a basic right—but it’s not absolute, unlike the ban on torture. In Britain, we have always maintained that freedom comes with responsibilities. If you are convicted of a crime justifying prison, you forfeit your liberty and certain civic rights. To say prisoners must remain “full citizens” with all the attendant rights, when we have locked them up, depriving them of so many freedoms, doesn’t make much sense. It’s only temporary, so hardly “civic death.” And we qualify offenders’ rights outside prison too—through criminal record checks and restrictions on certain types of employment.
You say the rest of the world is leaving us behind. Yet neither the European Convention on Human Rights nor wider international law requires prisoners to be given the vote. A minority of European Union countries give all prisoners the vote and plenty of democratic countries retain full bans—including Estonia, Liechtenstein, most states in the United States and Australia, Brazil and Japan.
In the United Kingdom, parliament decided a prisoner earns back his lost rights by serving his sentence—scarcely a slippery slope to medieval punishments. I doubt it’s the most important incentive, but you can’t have it both ways: you say the ban is pointless because it won’t stop anyone committing crime, but then argue that encouraging prisoners “to participate in democracy” helps rehabilitation. And debating the purposes of criminal justice only highlights that this is about social policy not fundamental rights.
That brings us to the crux. Why are we even having this debate? If you want more prisoner rehabilitation then illiteracy and drug abuse are greater issues. If prisoners must have full rights, why not campaign to lift the ban on them holding elected office? The only reason we’re debating this fringe issue is because the European Court of Human Rights in Strasbourg decided on a whim to create a novel right, which neither features in the convention nor was intended to do so by its architects, on an issue of social policy that should be left to elected law-makers. That is a flagrant violation of its judicial role. Judges are there to interpret and apply the law, not to re-write it or decide social policy without democratic oversight. Our ever-expanding human rights laws are creating a serious democratic deficit.
There is a revealing contradiction at the heart of your response. One moment you call voting a “basic right—but not an absolute one.” Later you say this is “about social policy not fundamental rights.” Which is it? It would seem odd if a democratically-elected politician, however extreme or sceptical on human rights, considered the franchise to be anything other than a vital civil rights question. It is hardly a socio- economic matter to do with tax and spending. If the basic rules governing participatory democracy aren’t a matter for law and judicial referees, it is hard to see what is.
The fact that a right is “qualified” or “balanced “ or not absolute, makes it no less “fundamental.” Most of our rights and freedoms (privacy and free speech included) can be interfered with if proportionate to a legitimate societal objective. My question is: what good is served by the current blanket, Victorian ban on any prisoner voting? The central difference between us appears to be that I believe it is for the state to justify any interference with an individual’s rights. You seem to suggest that they are earned, lost and re-earned by the people—in this case prisoners.
There are sometimes logical justifications for locking people up after a criminal conviction. Imprisonment for serious crime may protect the public; deter some potential and further offending; and provide a safe space for the education and rehabilitation of offenders with a view to their re-entering society more productively, better able to engage with their neighbours. But what objective is served by a blunt ban on any convicted prisoner voting? It dates to an age and idea of civic death: “you have offended and are now dead to the rest of us.” This unenlightened thinking is as costly in fiscal terms as it is in human terms. Citing the US with its vast private prison estate and use of the death penalty is hardly persuasive. And Estonia and Lichtenstein—really?
Of course we have basic rights that are important but not classified as fundamental human rights, such as the right to a refund when you buy jeans. And international law recognises different tiers of human rights: personal privacy can be restricted, the ban on torture can’t. Nowhere in international law—not in the European Convention, not in the United Nations Covenant on Civil and Political Rights—are prisoners granted a right to vote. So you are either trying to expand human rights law, or just pressing a policy issue. Either way, if you are a democrat, it must be for elected law-makers, accountable to voters, to decide.
I respect your policy arguments for lifting the ban, but disagree for principled reasons (that with rights come responsibilities) and practical ones (that earned release is more likely to promote rehabilitation). Crucially, those campaigning against the ban failed to convince parliament, which in 2011 voted in favour of retaining it by 234 votes to 22.
You say this is a “vital” civil rights issue, because it affects the franchise. So why aren’t we debating any other criteria—age, capacity, nationality, exclusion of peers—or restrictions on standing for office? The truth, which you have yet to even acknowledge, is that we’re only debating this third order issue because the court in Strasbourg has torn up the basic rules of democracy and ordered Britain to re-write its laws. As David Neuberger, President of the UK Supreme Court, said about attempts to shift the parameters of human rights law, “placing such decisions in the hands of the judicial branch… poses a danger for the judiciary and for liberal democracy.” Many senior judges agree.
I’m struck by how dismissive you are of anyone with a different view on this issue, labelling us “extreme” and “unenlightened.” You’re insulting a large proportion of the public. The risk for human rights campaigners is that these intolerant and undemocratic tactics reveal an increasingly authoritarian wolf in progressive sheep’s clothing, at odds with Britain’s proud tradition of liberty and democracy.
Sticks and stones, Mr Raab... I’m struck that you should spend so much time talking about wolves and sheep. To return to the debate, I’m afraid that the trivialising re-write of international law to replace your denim is completely lost on me. So is your curious if novel distinction between “basic” and “fundamental” rights. The European Convention contains a right to participate in elections. If it didn’t, there would have been no judgements against the UK government and, you’re right, we wouldn’t be having this debate now.
I make no apology for entering into policy debate on prisoners’ voting rights. As I tried to explain earlier, qualified rights may be limited for proportionate policy objectives. But I have yet to hear a single one from you. “Rights come with responsibilities” isn’t a policy but a slogan that could justify depriving prisoners of all communication with the outside world.
I need no lectures on democracy. It cannot survive without the rule of law. Many good Conservative friends of mine (not least Dominic Grieve, the finest Attorney General of recent years), appreciate that when you join a family of nations like the Council of Europe with a convention and a court, you have to respect even the judgements you disagree with. The European Court has not ruled that all prisoners must have the right to vote, only that a blanket ban is unacceptable. Respecting the judgement could be achieved by as small a gesture as giving short-term prisoners the vote. Your judge-bashing, by contrast, is petulant populism unworthy of the party of Winston Churchill, who promoted both the better treatment of prisoners and the European Convention itself.
Temporarily forfeiting the vote is a legitimate sanction for imprisonable offences. We need to stop criminals brandishing human rights to turn the justice system on its head. You don’t just need a lecture, Shami, but taking back to school on the basics of democracy. First, the convention was carefully worded to include a duty on governments to hold elections, but no individual right for prisoners to vote. If it had been in the convention it would not have taken the Strasbourg court until 2005 to find it. Second, that rights come with responsibilities is not a slogan but constitutional theory, argued by the influential American jurist Wesley Hohfeld, which every undergraduate learns.
Third, you’re no ally to the Rule of Law, which requires predictable rules. Human rights make it impossible to know with any certainty what the law is. Fourth, you say we should give prisoners the vote “as a small gesture” to the court. What is this, a judicial body adjudicating law or a political haggle? Far from judge-bashing, I regularly cite senior British judges lamenting the democratic deficit created by our human rights laws. I won’t relish snubbing Strasbourg. Ultimately, however, I believe defending democracy at home is more important than observing diplomatic niceties abroad.
