A prisoner's right to vote? Let's put victims first

A prisoner's right to vote? Let's put victims first

by Liam Kerr
article from Tuesday 28, January, 2020

MAKING ITS WAY through the legislative process at Holyrood is the Scottish Elections (Franchise and Representation) Bill. Amongst other things, it makes provisions for criminals with sentences under one year to vote in prison.

In December, Parliament debated this Bill at stage 1 – which means we were to vote on the principles of the Bill. Like my colleagues in the Scottish Conservative & Unionist Party, I could not vote for those principles due in part to the proposed enfranchisement of prisoners. Were it to pass, this Bill would allow a prisoner convicted of a crime severe enough to warrant a prison sentence to play a part in determining the outcome of Holyrood and council elections.

Historically, the position has been that those convicted of a crime severe enough to warrant a prison sentence lose some of their rights, including the right to vote, as a function of that imprisonment. Several reasons were advanced in the debate to alter that position.

First, the cabinet secretary raised the idea that rehabilitation prospects are increased by giving prisoners the right to vote, on the premise that participating in elections is likely to encourage them to become responsible, law-abiding citizens through what I think he called “active citizenship”.

I do not see it. Policy should be driven by evidence. I do not see in the Committee’s report into this Bill any evidential base that links the exercise of the franchise to greater rehabilitation, not least because, as the Committee convenor conceded in the debate, the committee felt that such small numbers of prisoners would avail themselves of that right that it would have no impact whatsoever. We need an evidential basis for what works in rehabilitation, and there is no such basis anywhere in evidence. There is an unsupported assertion that enfranchisement is potentially an opportunity for education.

When I have visited prisons and prisoners and interrogated reports, and when committees have exhaustively pored over the evidence on rehabilitation, I have seen that what promotes its success are factors such as education, purposeful work, a job to return to, a house to live in and meaningful family contact during incarceration. Therefore, when the Parliament considers rehabilitation and how to spend relevant resources, its time would be far better spent in addressing the fact that the number of hours of work and education that Scotland’s prisoners carried in 2017-18 out dropped by nearly 300,000. Certainly, there is no mention in the Audit Scotland report “Reducing reoffending in Scotland” through enfranchisement.

Due to the Scottish Government’s decisions, the Scottish Prison Service is currently unable to provide “Throughcare” services. I cannot help but think that resource and time should be used to end the current necessity for shared cells, for example. Such measures would have a greater impact on human rights and rehabilitation prospects than the extension of the franchise.

I suspect that many members were with me on that point but felt constrained by the human rights argument. In 2005, in the case of Hirst v United Kingdom (No 2), the European Court of Human Rights ruled that the current ban on all serving prisoners from voting, as defined in the 1983 Act, contravened Article 3 of Protocol No 1 of the European Convention on Human Rights, which provides that signatory states should ‘hold free elections... under conditions which will ensure the free expression of the opinion of the people’.

Various UK Governments have refused to implement the 2005 decision because the ECtHR has limited means to enforce its decisions and UK legislation takes precedence. The Council of Europe has since closed the case after the UK Government reached a compromise. In 2017, the UK Government published proposals to allow prisoners in England and Wales on temporary licence to vote. The Council of Europe accepted this compromise and closed the case in September 2018.

Section 3(3) of the Scotland Act 2016 devolves electoral law, with the effect that the Parliament may now amend its franchise. However, the UK-wide 1983 Act which bans prisoner voting still applies until Holyrood decides to change the law.

In the debate, the Cabinet Secretary said that we must be ECHR compliant and, of course, he is correct about that, as a matter of policy and of law.However, the proposals to extend the franchise to every prisoner in Scotland who is serving a jail term of less than 12 months go much further than is necessary to comply with the European Court of Human Rights’ judgments on prisoners’ right to vote.

In that regard, it is worth noting that article 3 of protocol 1 of the ECHR was carefully worded to include a duty on Governments to hold elections; it does not specifically accord individual prisoners a right to vote. That makes sense, because when someone is punished by imprisonment for committing a crime, they have certain rights curtailed. Those are chiefly the rights to freedom and privacy, but they also lose the right to vote. The fact that the right for prisoners to vote does not feature in the convention, and that its architects did not intend for it to feature and indeed that it took 23 years for the ECHR to “discover” such a right in that legislation, suggests that what actually is at stake is an issue of social policy. That view is supported by the wide variation in interpretation of what the right is and to whom it should be applied.

In the same debate, my colleague Adam Tomkins spoke of the Hirst judgment which he said “is one of the worst judgments that the European Court of Human Rights has ever handed down”.

To start with, it is based on a false premise: that there is a blanket ban on prisoners’ right to vote in the United Kingdom, when there is not. Prisoners on remand and those who are in contempt of court are not excluded from the franchise, so it is not a blanket ban. It is a general exclusion, which the European Court of Human Rights has, in his view, wrongly found to be unlawful, but it is not a blanket ban.

The second problem is that there is, quite deliberately, no right to vote in the European convention on human rights. The job of the European Court of Human Rights in Strasbourg is to give effect to the words of the convention; it is not the job of the court to invent new rights that do not appear in the convention. Unfortunately, that is what the court did with the Hirst judgment.

The European court should not have done that – not least because there is no European consensus on the question of prisoner enfranchisement and, therefore, there was no respect in the Hirst judgment for the all-important margin of appreciation on which the convention system depends.

That is why, over the course of the 15 years since the Hirst judgment, the court has swithered on it, given up and backed down on it, in effect, and has never found that the United Kingdom’s repeated refusal to comply with that ill-considered judgment should result in any kind of damages that disenfranchised prisoners could seek from the United Kingdom or any Government within it.

That is why the United Kingdom’s approach to the issue, which is to give the right to vote to prisoners who are released on temporary licence, has been accepted by the Committee of Ministers, which is the enforcement agency of the Council of Europe.

A minority of European Union countries give all prisoners the vote, and plenty of democratic countries retain full bans. The Law Society of Scotland’s briefing, provided to MSPs prior to the debate, makes it clear that “the franchise of prisoners may be restricted, provided that the restriction is proportionate to achieving a legitimate aim”, such as enhancing civic responsibility, respect for the rule of law and avoiding sanctioning law-breaking conduct. That being the case, I conclude that the Scottish Government is not mandated to enfranchise this category of prisoners at all. To be compliant, it could be that the Government must merely enfranchise people on temporary licence (as in England and Wales).

That is why the Scottish Government is going much further than it needs to with this bill to give effect to the ECHR’s jurisprudence on prisoners’ right to vote.

Even if one does not accept that, it must surely be accepted that we are talking about only a qualified right, as opposed to the absolute rights that are enjoyed by all, such as the right not to be subjected to torture. If that is the case, it inexorably follows that we must consider more than just the rights of prisoners. Victims such as those who have suffered serious assault, attempted murder and sexual assault, which are crimes that, in the past few years, have attracted sentences of 12 months or less, will have watched this debate. They will be asking, “Where were my human rights? What happened to my right to freedom from discrimination, my right to security and my right not to suffer inhuman or degrading treatment?”

We must be under no illusions: people who are sentenced to 12 months’ imprisonment are, by definition, serious criminals. They have committed the more serious offences – those that have defeated the SNP’s “presumption against short sentences” and the desire to give community disposals. They are the criminals who are not suitable for electronic monitoring, and the repeat offenders.

So I voted accordingly – such that when I walked out of the chamber after decision time, I was able to look victims – those whose right to life or whose right to freedom from torture was offended – and their relatives in the eye. And when they ask me “Why does the Scottish Parliament put a prisoner’s qualified right to vote over my family’s absolute right to life?”, I am able to answer, “I did not.”

Liam Kerr is Shadow Justice Minister and an MSP for North East Scotland

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