22 Prisoners’ Right to Vote
AconviCTED PRISONER retains all his civil rights, save those which are taken away expressly or by necessary implication. The fundamental (or constitutional) right to vote in the franchise was expressly upheld by the House of Lords in Raymond v Honey in 1981;1 strikingly, there is no mention of it in any of the various judgments on prisoners’ votes by the Supreme Court in R (on the application of Chester) v Secretary of State for Justice in 2013.[199] [200] The Justices had to consider whether the right to vote for prisoners had been taken away by the electoral law in the Representation of the People Act 1983 (as amended to exclude remand prisoners and dubiously resolved in debate in February 2012), which explicitly endorsed the statutory ban on votes for prisoners. The Justices were confronted with the case law (since 2006) of the European Court of Human Rights. In Chester, on 16 October 2013, the Supreme Court declined to reject the violation of Article 3 of the First Protocol, but did not endorse it. If the result of the appeal was dismissed, much of the reasoning and obiter dicta of the Justices which dealt with the penal aspects of electoral policy are, at best, highly dubious, not least the absence of the right of universal suffrage in a modern democracy; a prisoner’s fundamental right to retain all his civil rights not taken away; the individualism of the sentencing process; and the application of punishment by the State. Why that was worrying is the burden of this essay. But the Court declined the Government’s plea not to apply the ECHR’s ruling of a violation, but likewise declined to make any further declarations of incompatibility with English law.[201] If the legal position remains unresolved until Parliament debates the alternative sections in the draft Bill containing an optional response to the 1983 Act, what conceivable harm could there be to anyone in Britain today, or indeed to civilised societies, if those convicted of serious crimes, and serving prison sentences, were not automatically prevented from voting alongside the rest of us in a Parliamentary or local government election? The instinctive answer from the rational citizen is, unequivocally, none, although Lady Hale begins her judgment by proclaiming that the issue is an ‘emotive subject’. Forfeiture of the right to vote has a respectable ancestry. Parliament disenfranchised serious criminals in 1870 with the ending of transportation to the colonies. Parliament decreed that prisoners should lose the citizen’s right to vote, and the High Court in 2001 did not disturb the indiscriminate exclusion of all convicted prisoners from the electorate. But the European Court of Human Rights had other ideas. In 2006 the Court ruled that there was no evidence that Parliament had ever thought to weigh the competing interests, or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It held in other cases that life sentences without benefit of parole were incompatible with Article 3 of the Convention. Some years ago, the Department of Constitutional Affairs issued a consultation paper setting out a number of options, although significantly it did not include total enfranchisement. Alternative options included removing the right for the duration of a prison sentence or allowing the trial judge at the sentencing stage to decide whether a particular prisoner should retain voting rights. (I would call this loss of the right to vote a penal sanction, penologically plausible, alongside other non-custodial penalties or disabilities. As such I would doubt whether one such individualised penalty could fall foul of the Convention in much the way that the European Court of Justice at Luxembourg in the 1970s upheld the power to order a convicted person to be bound over and come up for judgment on condition that they lived outside the jurisdiction of the English courts for a number of years.) After much procrastination by the Labour administration, which prompted the Ministers in the Council of Europe to ask for a response from the UK Government, it belatedly indicated its proposal for legislation in its draft Bill. The Government’s persistence in maintaining partial disenfranchisement of prisoners rested on the premise that the more serious criminality, reflected arbitrarily in the lengthier terms of imprisonment, is an adjunct of the prisoner’s removal from society and entails removal from the privileges of society, amongst which is the right to vote. This is both bad law and unsound reasoning. In the landmark case of Raymond v Honey[202] the House of Lords held that prisoners retain all their civil rights save those expressly or impliedly taken away. In that case the prisoner’s inalienable right of access to justice - surely a basic civil right - was upheld. In subsequent cases, the House of Lords emphasised that prisoners do not lose all the rights of citizenry.[203] The right to vote is a fundamental aspect of a democracy. I was counsel in Raymond v Honey (which was heard in the House of Lords in 1981);[204] nothing was said in the court proceedings to indicate that the Government was intending to affirm the lack of any right to vote in all convicted prisoners, even though the electoral legislation in the Representation of the People Act 1983 was then in the official pipeline. And there appeared at the time none of the penal reform groups - at that time the Prison Reform Trust had only just been formed - little discussion took place until Strasbourg was invoked in the early twenty-first century. By 2011, in an entirely different context, the UK Supreme Court, through Lord Collins of Maplesbury, enunciated the fundamental freedom of the universal franchise in the constitution of the UK. It must be assumed that the rule of law is inapplicable to convicted prisoners, at least until there is an official response to the dictates of the European Convention on Human Rights. Prisoners are, of course, treated differently from the rest of the population, since the main, if not the sole, object of imprisonment is to curtail personal liberty. Where any civil right is a necessary adjunct of the prison regime, such a right may be lost. But the right to vote is not part of any control of prisoner activity, since it is exercisable outwith the institution, and moreover relates to a fundamental freedom. The law’s insistence on equal treatment must ensure that any differential treatment is based on real differences. If (as is the case) the difference in prison length relates to the criminality pre-incarceration (at different trials at different times) how can that differential possibly be an aspect of the prison regime? Apart from keeping the prisoner in custody for the prescribed period, the prison service is rightly indifferent to the imposition of the court’s sentence. The rationale of disenfranchisement (total or partial) cannot logically be justified on the grounds of a prisoner losing a ‘privilege’ which is not part of any sanction lawfully imposed by a court or by necessary implication of the fact of lost liberty. Justification for any restriction on the right to vote must relate directly to the proper administration of the prison as it affects the regime and the individual prisoner. And once enfranchisement is conceded to the shorter-term prisoner, what element of proportionality can justify such discrimination? The right to vote is not time-fixed; it is a fundamental right that resides in the prisoner whenever the citizenry is empowered to go to the polls. Since voting is often carried out by post or other method of communication, it cannot be any impediment to the prison administration. What then can justify the Government’s disinclination to opt for a reform that pertains in many (although not all) Western European countries? Twelve other Member States of the Council of Europe grant the right with restrictions. Some, like the UK, are absolute in denying the right. Far from being harmless, the conferring on prisoners of the unqualified right to vote has positive values. Since one of the purposes of the ban in the UK is a combined one to reduce crime, to punish offenders and to enhance civic responsibility and respect for the rule of law, what better way to incorporate peaceful coexistence in society than to remove any sense of second-class citizenry through disenfranchisement during custodial sentences? It is precisely what the Government is preaching in its Green Paper on sentencing reform - namely, greater and more vigorous efforts in the practices of prison institutions to the rehabilitation of prisoners. Since rehabilitation of prisoners calls for avoiding future misconduct, it relies on the principle that avoiding harmful action is the aim of law enforcement. The Justices of the Supreme Court appear not to subscribe to (but likewise not to reject) the Mill doctrine of harm, yet they display some odd views about penology. They disavow the basic principle that sentencing offenders is a judicial exercise on the individual offender, and is not a simple reflection of a class penalty. Some prisoners deserve condign punishment, while others warrant nothing other than a temporary loss of liberty. They cannot sensibly or fairly be lumped together. Moreover, mandatory penalties themselves violate a principle of individual treatment, since they do not permit the sentencing court to evaluate the degree of criminality. It is assumed that all imprisonable events automatically deprive the prisoner of a civil right. If so, on what does the deprivation derive its origin? At this point, emotion may play its part, according to Lady Hale, although the Supreme Court is asked to adjudicate with legal reasoning. Will Parliament ultimately endorse the 1983 ban? It is offered a compromise of giving the vote to some prisoners who have offended less seriously. A sentence of 12 months’ imprisonment or less has been recommended by a parliamentary committee.