In the case of Hirst v. the United Kingdom (no. 2) (2006)(see here), it was said that:
"Section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of the offence... "
The 1983 Act refers to the Representation of the People Act 1983, which currently excludes offenders from the right to vote.
The decision of the European Court of Human Rights (ECHR), requires that the Government to put an end to its blanket-ban on the issue of prisoner voting rights, and although Parliament is somewhat free to set its own limit upon which prisoners will be entitled to vote, it must still ensure its decision is ruling-compliant.
David Cameron's announcement that despite the prospect making him 'physically ill', Government must comply with the EU ruling, or risk losing millions of pounds in compensation to prisoners who have had their so-called 'right' to vote infringed upon, brings to the fore two issues:
1) The legitimacy of the longstanding notion that a prisoner should forfeit their right to vote when they commit a crime which necessitates their imprisonment; and
2) The legitimacy of an unelected, unaccountable body having the ability to make decisions with effect on the supremacy of national law.
Current Government plans to address the issue involve exempting from the ban, those serving less than four years in prison.
Addressing the first issue, I was initially incensed by the audacity of John Hirst, an unremorseful man who murdered a woman with an axe, to believe that he rightly deserved suffrage - and I still am. However, I cannot allow his attitude to cloud my moral judgment which is justified by a myth - a myth that renders all prisoners pariahs, who should rightly forfeit as many basic human rights as possible once they have been imprisoned.
Indeed, according to John Rawls, the existence of unreasonable persons who choose to violate societal norms, by contravening the laws of the State, laws which we as individuals give our tacit consent to obey, provide us with the "practical task of containing them- like war and disease - so that they do not overturn political justice."
However, by viewing the disenfranchisement of this segment of the population as an affront to political justice, we fail to grasp the concept underlying this pursuit - unalienable human rights.
The right to vote is considered both a fundamental human and political right, and cannot simply be disregarded or forfeited by imprisonment; this would defy the premise underlying human rights.
In medieval Europe, a 'civil death' was frequently conferred upon those who were convicted of crimes; disenfranshisement can quite easily be reconciled with the concept of civilian death since the subject was no longer a member of civil society, no longer a 'signatory' to the 'social contract' (see John Locke) so to speak.
However, denying prisoners the right to vote is inconsistent with the modern day penal code. Nowadays, most prisoners will retain all their basic human rights by virtue of being born into the human race. The right to vote is a key mark of participation in the democratic process - they are citizens too and deserve the right to be heard. By denying a prisoner the right to vote, we are inferring that they are somehow 'unequal' or 'inferior' to other citizens, a preposition which does great violence to fundamental liberal principles which we consider ourselves the proponents of.
Any connection that supposedly exists between a non-political crime and suffragacy is necessarily tenuous. As Charles de Montesquieu stated, 'Liberty is in perfection when criminal laws derive each punishment from the particular nature of the crime' - and in the case of non-political offenders, it does not. Assuming punishment serves a corrective function, it is difficult to see how someone who has stolen, for example, a car, will suffer from the 'punishment' of having his voting rights taken away from him, whereas I do see how someone who has committed electoral fraud, a political crime, will.
Whilst I am generally of the view that for those imprisoned who commit particularly depraved crimes, the right to vote ought to be suspended (it is somewhat unnerving to think that they have a right to shape the fabric of a society which they attempted to destroy), I am aware that not all prisoners are of the same calibre - some are certainly more deserving of retribution than others, and quite often their sentence length will reflect that. I am supportive of the Government's stand to use sentence length, combined with judicial discretion, as the basis for exclusion, as a cost-effective and fair way to ensure compliance with the ECHR ruling. In this way, it is highly unlikely that morally repugnant criminals such as murderers and molesters, will be enfranchised.
On the second issue, that of the infringement of parliamentary sovereignty, it should be noted that the ECHR is not part of the European Union (EU) system; they are two separate institutions governed by separate treaties and it is possible for the UK to withdraw from the ECHR and remain an EU member state...at least for now.
Until the UK 'unratifies' the 1959 convention, we will forever remain bound by legal obligations imposed on us, or we will have to fare the monetary burden of violation it will impose. The latter is not an option, particularly in light of austerity measures resulting from a poor economic climate.
People fear the encroachment of Europe on the UK's national sovereignty, not least because it is a considerably undemocratic institution. Yet the fact is, in an increasingly globalised age, the UK's best chance of exerting influence internationally, is through participation in Europe. Making concessions for international eminence is a necessary trade off. Although the ECHR is an unelected body, it was supported by elected representatives who were certain it was in the UK's national interests. I am certain the government will eventually allow the ECHR, on this issue, to have final decision-making authority. And why? because it recognises there is economic and political, benefit in participating in Europe.
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