Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill

Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents

5 Is there a rational basis for disenfranchisement?

The right to vote and the "social contract"

114. In this chapter we consider whether or not voting is a "right", and, if it is, whether there is a rational justification for removing the right to vote from prisoners.[131]

115. John Locke, in his Second Treatise of Government of 1690, described the state of nature as one of "perfect freedom" and "equality". In combining to form society, Locke argued, people gave up this freedom:

"Because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it."

116. Locke accordingly proposed that an implied contract underlay all social obligations; the criminal, by breaking the laws of society and breaching the terms of the social contract, became in effect an outlaw: he "may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security". William Cobbett, writing more than a century later in 1829, echoed this argument: while acknowledging that "The great right … of every man, the right of rights, is the right of having a share in the making of the laws", he argued that "Men stained with indelible crimes are excluded, because they have forfeited their right by violating the laws, to which their assent has been given."[132]

117. The existence of a "social contract" has been questioned repeatedly over the centuries, on both philosophical and empirical grounds. David Hume, for example, while conceding that there might have been some "original contract" between rulers and the governed in primitive societies, noted that its application to more advanced societies was "not justified by history or experience in any age or country of the world."[133] In evidence to this Committee, Professor Jeremy Waldron echoed Hume's scepticism, commenting that "I think it is the case that the social contract is mainly used these days as a convenient fiction, with some opinions differing as to how convenient it is."[134]

118. Nevertheless, to this day the social contract is cited as a key justification for depriving convicted prisoners of the vote: as the ECtHR noted, one of the planks of the Government's defence in the Hirst case was that "Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country."[135]

119. In his judgment in Chester and McGeoch, Lord Sumption criticised lazy assumptions that UK rules about prisoner voting imposed some form of "civil death" which is justified solely on the basis of the social contract. Citing Locke's account of the social contract, he said that "It is tempting to regard the present British rule about prisoners' voting rights as a distant reflexion of this view, and plenty of commentators have succumbed to the temptation. But like most rhetoric, this is misleading."[136]

120. The "social contract", as described by Locke, is more easily understood by reference to individual "freedoms", rather than "rights"—he envisaged the perfect freedom of a state of nature being reined in, by common consent to the rule of law, in order to promote the common good. It follows that, in common law countries, citizens have historically been presumed to enjoy all freedoms which have not been explicitly removed or limited by law. In the words of Thomas Hobbes, "A free man … is he that is not hindered to do what he has a will to do."[137] As Lord Hoffmann claimed in 2009, even in the eighteenth century there was a perception across Europe "that England was a free country; that there was, for example, freedom of speech although there was no law which expressly said so."[138]

121. This principle—that freedoms are enjoyed unless and until they are taken away by law—has deep roots in the common law and in our shared political and constitutional history. The founding texts of the UK constitution, such as the Magna Carta of 1215, the Petition of Right of 1628, the English Bill of Rights of 1689 and the Scottish Claim of Right of 1689,[139] were drawn up to prevent unwarranted encroachment by the sovereign upon the "liberties" of the English or Scottish people. In each case those concerned by the potential for royal abuse of power sought to reaffirm ancient liberties, rather than seeking to identify and formulate an exhaustive list of "rights" as such. They affirm that the consent of the governed is needed if the state is to encroach upon individual freedoms. Over the centuries the courts, by a narrow construction of statute where necessary, and by developing common law principles of fairness and reasonableness to constrain executive action, have also played a key role in defending the liberties of the subject.

122. One effect of this tradition of "negative liberty" was to make it almost impossible for individuals to enforce "rights" or "freedoms" in the abstract (in other words without an established cause of action), with the result that basic freedoms or rights were on occasion lost or regained by inadvertence rather than design. Voting rights for prisoners, as we have outlined in Chapter 2, were a case in point. For almost a century, the Forfeiture Act 1870 expressly prevented some prisoners from voting. But the restriction on the prison franchise outstripped these express provisions for long periods. For Aidan O'Neill QC, these consequences "happened accidentally", with little consideration by Parliament: "What happened … was that voting was tied to residence. If you were no longer in your place of residence, as a matter of fact you could not vote."[140]

123. Such accidents worked both ways: the effective re-enfranchisement of many prisoners following enactment of the Representation of the People Act 1948 was also inadvertent, a by-product of the introduction of postal voting.

The emergence of "human rights"

124. The emergence of the modern concept of "human rights" can be traced to the late 1940s, after the events of the Second World War exposed the fragility of the notion that the legitimacy of the state rests upon an unspoken contract between rulers and those they governed. In the late 1940s the fundamental and inalienable quality of individual human rights was affirmed not just in the European Convention on Human Rights, but in a range of other international declarations and instruments,[141] which used a new language of universalism. Mr Jagland pointed out that the UK was at the forefront of developing these new international safeguards:

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125. The ECHR is unique among these international declarations in being more than just a Convention, or paper document. It is the foundation stone of what Mr Jagland described as the "Convention system", which permits individuals to petition the ECtHR on the basis of their Convention rights. The key issue for this Committee has been whether the UK's adherence to the Convention signifies an irreversible shift away from its long-standing tradition of negative civil liberties, which may be limited as part of an implicit "social contract", and towards a more prescriptive system of rights, enforced through the courts.

Is there a right to vote?

126. Within the ECHR certain rights are expressed without qualification, while others are explicitly subject to the requirements of public safety, public order, and so on. For instance, Article 3 states simply that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." On the other hand, paragraph 2 of Article 9 (which guarantees the right to freedom of thought, conscience and religion) states that:

"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

127. Some witnesses, drawing on the different ways rights are described within the Convention, sought to distinguish between those rights that are "fundamental"—that is, inalienable under any circumstances—and those that are of a lesser status. David Davis MP, for instance, said that "The Chairman started out by asking whether [the right to vote] is a fundamental right, and we said that it is a civic right. It is part of a contract"[143]; Jack Straw MP also described the vote as a "civic right which is part of the contract for citizenship."[144] Lord Mackay of Clashfern, on the other hand, found formal distinctions between "fundamental" and "civic" rights unhelpful: "I do not know that I understand exactly what is meant by 'fundamental'. A human right is a human right, and some may be more important than others."[145]

128. In Chapter 3 we have traced the process whereby the ECtHR determined that voting was a human right under the Convention. But we have also asked ourselves whether, regardless of the meaning of the Convention, voting should be considered a "right"; and, if so, how important a right it is, and how far it may legitimately be limited or qualified.

129. Jonathan Fisher QC argued that the "right to vote" was not properly to be considered a "human right". His argument was based upon the principle that if a right is not found in positive law, it is not a right at all, and his reading of Article 3, Protocol 1 accordingly distinguished between "the guarantee to hold free elections on the one hand, and the manner in which free elections are to be held on the other." Underlying this analysis was a more fundamental challenge to the philosophical basis for recognising "rights":

"Theories based on John Locke's social contract and/or the existence of natural law rights have given way in modern times to a positivist approach, by which human rights are recognised in circumstances where a broad section of society acknowledges this to be the case. Applying the positivist and self-sustaining approach to the recognition of legal norms, I believe it is clear that the right to free elections which guarantee the democratic process is protected as a fundamental freedom whereas an individual's ability to participate in the process is not."

130. It is clear that Mr Fisher's argument is not accepted by the ECtHR, which, as we have described in chapter 3, has since 1987 consistently interpreted Article 3, Protocol 1 as establishing an individual right to vote. At the other end of the spectrum, Dr Daniel Viehoff and Dr Christopher Bennett, of Sheffield University, posited a three-fold rationale as to why the right to vote deserves its place in human rights instruments:

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131. Of these three propositions, the third, that the right to vote underpins democratic legitimacy and thus what Dr Viehoff and Dr Bennett called the state's "moral right to exercise power over its subjects", carries particular weight: the presumption, in any democracy, must be that all citizens have a right to vote. To put it another way, universal suffrage underpins any democracy and cannot be guaranteed unless each citizen possesses a presumptive right to vote. But that right is presumptive, not absolute. In the words of Angela Patrick, of JUSTICE:

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Limitations on the right to vote

132. Given the presumption in favour of universal suffrage, it follows that if any group of citizens (including prisoners) is to be disenfranchised, there needs to be a robust and principled justification for that disenfranchisement. In the language of ECtHR case-law, this means that the right to vote may be only be limited in pursuit of the "legitimate aims" of democratic states. These aims encompass various limitations on the right to vote that are deemed necessary to protect the integrity of the electoral process, including age limits, since children and younger adolescents "lack the intellectual and emotional maturity necessary to make good use of the power over our fellow citizens each of us exercises by voting;"[148] nationality and residence requirements;[149] and restrictions based on mental incapacity.[150] In the latter regard, long-standing common law restrictions upon voting relating to mental state were abolished in the UK by means of section 73 of the Electoral Registration Act 2006. In the UK one further restriction remains, the peculiar product of our constitutional history: peers who sit in the House of Lords, being members of the legislature for life as of right, are disqualified from voting in elections to the House of Commons.[151]

133. The question for this Committee, therefore, has been whether a case can be made for maintaining a ban on voting by some or all convicted prisoners. In particular we have considered whether the current ban is justified and necessary, as part of penal policy (i.e. as part of the punishment imposed on those receiving custodial sentences). Finally we consider the symbolic value of the ban in promoting civic responsibility.

Prisoner voting and penal policy

134. The loss of certain rights is a necessary consequence of imprisonment. Most obviously, loss of liberty is the key element of any custodial sentence. This is acknowledged in Article 5 of the Convention, which states that "Everyone has the right to liberty and security of person", before listing six cases in which persons may be deprived of liberty "in accordance with a procedure prescribed by law", including "the lawful detention of a person after conviction by a competent court." The argument that loss of the right to vote is part and parcel of the loss of liberty was summarised by the Archbishops' Council of the Church of England in the following terms: "imprisonment constitutes a loss of liberty and, as a corollary of that, a range of opportunities to participate in civil society, as well as in normal social patterns of activity, are forfeited, including the right to vote."[152]

135. The ECtHR has held that liberty is the only Convention right to be automatically forfeited as a consequence of lawful detention,[153] though the exercise of other rights may be curtailed where the Convention so specifies. For example, interference by public authorities in the right to "respect for … private and family life" contained in Article 8 ECHR is permitted to the extent that is "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, [or] for the prevention of disorder or crime." Prisoners may therefore be subject to inspection regimes and restrictions on their ability to associate, which are necessary to the running of a prison but would not be generally acceptable outside the prison context.

136. Similar principles exist in domestic case law. In 1983 the Judicial Committee of the House of Lords affirmed that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication."[154] The vote is, at present, expressly removed from all prisoners under section 3 of the Representation of the People Act 1983.

137. The Government's defence of section 3, as summarised in the judgment in Hirst, is that loss of voting rights pursues the twin aims of "preventing crime by sanctioning the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law."[155] The first of these arguments (that the loss of voting rights is a part of the punishment handed down to convicted prisoners) echoed statements made in the domestic case that preceded John Hirst's application to the ECtHR. Lord Justice Kennedy quoted the following defence of the Government's policy, made in February 2001 by the then Home Secretary, Mr Jack Straw MP:

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138. Any punishment, to be justified, must serve one or more purposes. These purposes are conventionally grouped under the four headings: retribution, deterrence, rehabilitation and public protection.[157] Section 142 of the Criminal Justice Act 2003, which sets out the "purposes of sentencing", adds a fifth, reparation:

142(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing—

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.

139. The Government's reference in the Hirst case to "sanctioning the conduct of convicted prisoners" suggests that deprivation of the right to vote is essentially an act of retribution, part of "the punishment of offenders". Indeed, retribution was described by Dr Viehoff and Dr Bennett as the only purpose of punishment which could offer "a plausible philosophical basis for disenfranchising a significant portion of the prison population."[158]

140. The interpretation of disenfranchisement as an act of retribution is open to a number of objections, chief among which is the lack of an obvious "fit" between the crime and the punishment: the same punishment is applied (albeit for a different length of time) to someone imprisoned for dangerous driving and to someone imprisoned for rape, and in neither case is it self-evident that loss of voting rights (as opposed to loss of liberty) is fitting retribution.

141. Moreover, there is no evidence to suggest disenfranchisement is perceived by prisoners themselves as a significant component of retributive punishment. As Paul McDowell, of NACRO, said, "The idea that, somehow, removing the right to vote or not providing the right to vote for prisoners would be perceived by those prisoners as a punishment is not reality."[159] We see no reason to question this statement.

142. While some prisoners may not perceive the loss of the vote as punishment, many of our witnesses commented on the negative impact of disenfranchisement on the prisoner. Dr Susan Easton told us that disenfranchisement was a "degrading punishment" that reinforced offenders' social exclusion.[160] Sorcha Daly, Specialist Contracts Manager for Women in Prison, told us that women found the experience of prison "incredibly dehumanising" and that the continued ban on voting would cause further damage "by saying that they are not citizens or persons within society."[161] Juliet Lyon, Director of the Prisoner Reform Trust, argued that enfranchisement was important in affirming "that you remain a person even if you are serving time behind bars."[162] She also argued that that a punishment of "civic death" was "completely out of step with a modern prison system",[163] devaluing prisoners and reinforcing the societal view that prisoners are worthless.

143. The other principle purposes of punishment are still harder to relate to prisoner disenfranchisement. No argument was advanced to us that disenfranchisement acts either as a deterrent, that it protects the public, or that it contributes to the rehabilitation of prisoners. The Caritas Social Action Network, in a joint submission with the Catholic Bishops' Conference, went even further:

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Prisoner voting and rehabilitation

144. While no witnesses suggested that depriving prisoners of the vote contributes to rehabilitation, several argued that reinstating prisoners' right to vote could be a powerful tool for rehabilitation. Mark Johnson, of User Voice, a charity which works with prisoners in establishing prison councils, described time in prison as "a tremendous opportunity to teach the benefits of entering a democratic process". He also noted that where prisoners had been engaged in democratic systems, such as prison council elections, research had shown an increased interest on the part of prisoners in exercising their right to vote on release.[165] Prisoners at HMP High Down and HMP Downview were also overwhelmingly of the view that the exercise of voting rights could play a useful part in rehabilitation. They noted that while many prisoners were alienated from society before their conviction, prison gave them time to sort out their lives, and that in the process they became politically engaged for the first time.[166] Caritas Social Action Network argued that "we must not turn our backs on prisoners and forget about them; instead we should put them on the path to reform by showing them that they have a continuing stake in, and duty towards, the community into which they will return."[167] Such arguments would apply equally were prisoners to retain the right to vote, or were they to lose that right upon sentencing while being given the chance to apply for its reinstatement at some point during their sentence.

145. Mr Nick Hardwick, the Chief Inspector of Prisons, confirmed that giving prisoners the vote could help promote rehabilitation, but told us that its importance should not be overstated: "In terms of the things that might cause a prisoner not to offend, being able to vote would be pretty low down the list … I do not think you would give the right to vote because it encouraged rehabilitation but, if you were going to extend the right to vote, I would use it as an opportunity to work on citizenship-type issues."[168]

146. The Government, while acknowledging that there might be a rationale for allowing prisoners to "earn back" the right to vote, drew attention to various practical issues, including cost and the administrative burden upon the National Offender Management Service, the accessibility of any courses offered to prisoners, establishing criteria for re-enfranchisement, and "the implications of providing citizenship education or training for detained prisoners that was not also available to the wider public."[169]

Prisoner voting: symbolism

147. The Government, in its submissions to the ECtHR, supplemented arguments based on punishment with the wider proposition that disenfranchisement "enhances civic responsibility and respect for the rule of law". The ECtHR, in assessing this argument, drew on the minority judgment in the Canadian case of Sauvé v the Attorney General of Canada (no. 2):

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The Court accordingly accepted that the "symbolic" objective of safeguarding the "social contract" might in principle constitute a "legitimate aim."[171]

148. The "social contract", as we have already noted, is widely regarded as a convenient fiction. But the cultural and constitutional history of the United Kingdom is very different from that of most other European states. The UK constitution remains uncodified, and thus mutual trust between government and the governed, between Parliament and the people, though subject to many challenges, continues to be a key component in political life, and is arguably the moral foundation for the constitutional doctrine of parliamentary sovereignty.

149. Another possible explanation for the particular symbolic power of the ban on prisoner voting was advanced by Professor Jeremy Waldron, who noted that the vote was not just a right or liberty, but a power which every voter enjoys, over his or her fellow citizens: "If you thought of the vote as a power … you might want to give some thought to whether people who have shown disregard for the rights and interests of others should, for the time being, be entrusted by their fellow citizens with that minuscule power over them … It seems to me that that might … hook up with the idea that serious offending should be what you are looking at."[172]

150. Admittedly the power that each individual voter exercises is, in Professor Waldron's words, "minuscule". But there remains an intuitive connection between exercising the vote and having power over how society is governed. In private discussion with Professor Nicola Lacey we explored the analogy of a self-governing association, in which, if a member had grossly violated the basic rules, it would seem self-evidently appropriate to take away that member's partial control of the affairs of the association.

151. The individual voter is just one among an electorate which in 2011 amounted to more than 46 million; but experience demonstrates that there will always be particular constituencies, and occasionally even whole elections, where a handful of votes tip the balance one way or another. We cannot conceive of the UK people or Parliament accepting that such power should be vested in the most serious offenders, whose crimes fundamentally damage the fabric of society. As Baroness Hale of Richmond commented, in respect of the two convicted murderers whose case was recently considered by the Supreme Court: "I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote."[173]

152. So the symbolic and emotive force for the UK electorate of the current ban on prisoner voting is clear. While there is little detailed evidence on public opinion on the issue of prisoner voting, such polling data as exist confirm that, as David Davis MP told us, around two thirds of the British public oppose any change to the existing ban on prisoner voting.[174] But the weight of public opinion is not of itself sufficient to justify a complete ban; indeed, the EctHR specifically addressed this point: "Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion."[175]

153. At the same time, democratically elected representatives cannot ignore the views of the electorate, and the vote in the House of Commons in February 2011 demonstrated that a large majority of MPs are sensitive to these strong views. The Attorney General accepted this, while suggesting that MPs could do more to explain the issues around prisoner voting:

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Views of the Committee

154. We do not believe the distinction between fundamental and civic rights to be helpful in considering the issue of prisoner voting. In a democracy all citizens possess a presumptive right to vote, thereby having a say in the making of the laws that govern them. The existence of such a right is the necessary corollary of universal suffrage. This conclusion holds good regardless of the decision of the European Court of Human Rights in Hirst v the United Kingdom (No. 2).

155. It follows that the vote is a right, not a privilege: it does not have to be earned, and its removal without good reason undermines democratic legitimacy. The right to vote is a presumptive right, not an absolute right: democratic states may restrict the right to vote in order to achieve clearly defined, legitimate objectives.

156. We consider that the case for depriving prisoners of the vote as a part of their punishment is weak. It is possible that disenfranchisement could fulfil a retributive function, but no assessment of the effectiveness of disenfranchisement in this regard appears to have been undertaken.

157. A case has been made that reinstating prisoner voting rights, in whole or in part, could contribute to rehabilitation, though this is not in itself a strong enough argument to justify a change in the law.

158. The justification of the disenfranchisement of convicted prisoners as a symbolic act, which enhances civic responsibility and reflects the consequences of failure to respect the laws made by the community as a whole, is, in our view, the strongest that has been advanced in the course of our inquiry. We consider in Chapter 7 whether the current prohibition is a proportionate means to achieve this legitimate aim.

131 This chapter uses the term "rights" broadly, without seeking to create a distinction between "rights" and "human rights". For an alternative approach see the written evidence from Jonathan Fisher QC. Back

132 William Cobbett, Advice to Young Men (1829), Letter VI; Cobbett also excluded women, minors and the insane. Back

133 David Hume, Of the Original Contract (1748) Back

134 Q 119 Back

135 Hirst, paragraph 50 Back

136 Chester and McGeogh, paragraph 126 Back

137 Thomas Hobbes, Leviathan (1651), chapter 2, quoted in Isaiah Berlin, 'Two concepts of liberty' (1958) Back

138 Lord Hoffmann, 'The Universality of Human Rights', Judicial Studies Board Annual Lecture 2009 Back

139 See the report of the Commission on a Bill of Rights (December 2012), volume 1, pp 54 ff. Back

140 Q 34 Back

141 Notably the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in December 1948. Back

142 Q 178 Back