Tomorrow is Election Day and Prisoners should be allowed to vote because….

By Mark Leech
Editor: The Prisons Handbook
for England and Wales

Although the UK should have left the European Union a couple of months ago, tomorrow the UK will take part in the European Parliamentary Elections – well some will, according to the latest offender management statistics the 73,000-sentenced prison population in England and Wales won’t be voting (apart from those lucky enough to be released on temporary licence tomorrow: ROTL)), but the 9,000 remanded in custody should still be able to do so.

Four years ago the then Prime Minister, David Cameron, said it made him “physically ill” to be forced to give prisoners the vote; in doing so he revealed a shocking disregard of democracy, human rights and put quite simply, justice itself.

Following his remarks, I was invited onto various news programmes and asked to explain why it was that I thought David Cameron was so wrong.

“Are you suggesting Mark that the likes of Ian Huntley should be given the vote” asked one interviewer?

“Rapists and paedophiles should really be able to vote too then should they” asked another?

A third laughed at my suggestion that in all honesty the public were actually more interested in why prisoners shouldn’t vote, than prisoners were as to why they should; but it was true nonetheless – largely speaking most prisoners couldn’t give a toss about voting, they became disengaged from politics and its various scandals years ago, and since then the public have increasingly followed suit.

And to come straight to the point: yes ‘the likes of’ Ian Huntley should be allowed to vote – and for the record so too should the likes of paedophiles, rapists, murders, robbers, drug addicts and thieves.

Why?

That’s easy.

For the very simple reason that we live in a democracy and the one thing that marks out a democracy, from a dictatorship, is that in a democracy everybody counts; black, white, tall, small, fat, thin, gay, straight, good, bad and yes even very bad too – everybody, every single person, ‘counts’.

I am not saying that every prisoner should be allowed to vote, only that where we remove the right to vote it has to be based on reason not rhetoric. If we are seriously saying that every convicted prisoner is banned from voting, just because they’re in prison, whether they are serving seven days or seventy years, then my point is that there has to be some connection between the crime they committed and the sentence imposed.

A man goes out on Friday night, gets drunks, gets involved in an argument that descends into a fight, is arrested for assault and appears in court on Monday morning – when I asked the politicians I appeared with on those news programmes whether that man should lose his driving licence, every single one said ‘No’ of course not, ‘he hadn’t committed a motoring offence’.

Quite so.

So why do we remove the right to vote from prisoners who have not been convicted of any electoral offence?

Where someone has been convicted of electoral fraud then removal of the right to participate in elections for a fixed period should be a sentence open to the courts – not a stick wielded by politicians for ulterior and irrational motives.

And there is another basic objection that I have to removing the prisoners’ right to vote – and this has nothing to do with crime, indeed it is much more fundamental than that – it is that politicians have a vested interest in this subject; their career, livelihood, salary and future depend on votes, they are the last one’s who should be able to pick who can mark their homework.

I don’t object at all to the question as to whether prisoners should be able to vote actually being asked, or debated, on the contrary I welcome transparency – I simply say that politicians are not the ones who should answer such fundamental civil rights questions – that should be one for society as a whole, ideally enshrined in a written Constitution and delivered by the Courts.

And it is not as if Cameron’s view of prisoner voting has widespread support in other countries; it doesn’t.

Many nations, including Denmark, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders at all. In others, however, severe restrictions make it very difficult in practice for offenders to vote. In Cyprus, for example, an inmate must happen to be out of prison on the day of the elections (the position now in England and Wales too), and in Slovakia, prisoners can legally vote but no provision is made to allow them to do so.

The Republic of Ireland lifted its ban in 2006, passing legislation enabling all prisoners to vote by post in the constituency where they would ordinarily live – and the first thing they did in South Africa after the release of Nelson Mandela was to give every single prisoner the right to vote because they had spent too long living with apartheid to allow it to continue to infect their electoral system; and electoral apartheid is what we have in the UK as long as we say one section of the community – prisoners – cannot vote.

In 13 European countries, electoral disqualification depends on the crime committed or the length of the sentence. Italy, Malta and Poland, for example, ban those deemed to have committed serious crimes. In Greece, anyone sentenced to life receives a permanent voting ban.

Germany’s law actually urges prisons to encourage their inmates to vote, although it does ban those whose crimes undermine “democratic order”, such as political insurgents. You see Germany, with its chequered human rights history (like that of South Africa) ‘gets it’ where Cameron doesn’t.

Germany ’gets it’ that there is a risk that by excluding people from taking part in the very essence of a democratic process by voting, they will accept that exclusion and not only become disengaged, but then they’ll stick two fingers up to your society by starting their own way of doing things which results in gang culture, crime and lawlessness.

Germany is not alone.

Until 2005, Austria banned all those sentenced to more than one year. However, a convicted murderer challenged that and won, meaning that Austria now allows the vote in all cases except where the offence is particularly relevant – such as electoral fraud.

Other than the UK, the only other European countries with an outright ban on prisoners voting are Russia, Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg and Romania; hardly countries leading the way in political thinking.

However, until a legal challenge is brought in those countries, Europe will not seek to force a change in their domestic legislation.

The European Convention on Human Rights is not some ‘a la carte’ menu in a restaurant, where you can pick and choose what rights you want to enforce and those you wish to ignore, all the rights protected by the Convention are enforceable – and let us not forget the UK signed up to this Convention well over half a century ago.

The UK led the way in post-war Europe and drove this historical treaty forward – if anything should make politicians ’physically sick’ it is not the prospect of giving prisoners the vote, but the shameful way they seek to walk over hard-won rights and freedoms that our ancestors considered so vital to any democracy they laid down their lives fighting for them.

Mark Leech FRSA ©

UPDATE: Just out: Miller v UK Court finds ban on prisoner voting breaches Article 3

Read:  Summary of European Case Law on Prisoner Voting