David Cameron reputedly vowed that prisoners “will be allowed to vote over my dead body”. Don’t give us any ideas Dave… We know that the current blanket ban has been judged unlawful by The European Court of Human Rights, and we presumably don’t want to break the law. I mean, that could land us all in the collective slammer, without the right to vote. Not a clever idea, given that the current UK voter turnout is already among the lowest in Western Europe.
So what would Borgen do? Well, nothing actually, as Danish prisoners have enjoyed the unfettered right to vote since the 1930s. And that’s despite the fact that our Danish cousins only incarcerate really REALLY naughty boys and girls.
“A punishable offence shall not involve the suspension of civil rights, including the right to carry on business under an ordinary license or a maritime license.” These are the words of chapter 9, section 78, subsection 1 of the Danish Criminal Code, and this is where the story of prisoners’ right to vote in Denmark begins. Before the 1930’s, the right to vote could be revoked for certain crimes. Denmark’s policy is consistent with that of its Scandinavian neighbours – in Finland and Sweden, all prisoners retain the right to vote, whereas disenfranchisement in Norway is extremely rare.
The general European picture is that eighteen countries allow all prisoners to vote – including Germany, Finland, Denmark and the Netherlands – there are another twelve where prisoners’ rights are restricted in some way, including Austria, France and Italy. In thirteen countries, including Ireland and Belgium, certain time limits apply.
In theory, therefore, it is possible for the British government to adopt a series of measures that would ban many, if not all, prisoners from voting as long as there was a legally consistent approach and the ban was not a blanket one.
Borgen’s attitude is that a prison sentence means that you’re deprived of your liberty. You become subject to the rules of the prison system. Even open prisons with the most liberal conditions impose certain restrictions on a prisoner’s freedom of movement.
It’s this very deprivation of freedom which signifies the punishment under the Danish judicial system. Prisoners don’t lose their common citizens’ rights, they can vote and exercise their freedom of speech. Would those who object to voting rights for prisoners also take away their freedom of speech, I wonder?
The Danish prison and probation service maintain that control of prisoners go hand in hand with efforts to prepare them for life outside prison, once they’ve served their sentence. That means that conditions inside prison as far as possible mirror conditions in the community outside, within the limits that the safety and security of the surrounding community dictate. Prisoners should also, as far as possible, maintain contact with their community and their families so they have someone to join when they’re released.
A trawl through Danish online chat rooms similarly reveals attitudes a million miles from the common British view of the matter. Here’s just one example: “A criminal would never think that s/he was attacking the community laws. Typically, a criminal commits crime out of sheer need or lack of other options…”
This whole debate about voting rights for prisoners is merely an incredibly sad symptom of a much bigger and uglier dysfunction in our community.
Let’s start tackling that and the rest will take care of itself.
* Kirsten de Keyser sits on the Camden Liberal Democrat Executive and is a member of Social Liberal Forum and Liberal Democrat Friends of Palestine. She blogs here.
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14 Comments
“Danish prisoners have enjoyed the unfettered right to vote since the 1930s”. Thanks for that. I believed it all started in Euope in Sweden in 1968. Although in the US Maine and Vermont have allowed it since the War of Independence, I think.
“Would those who object to voting rights for prisoners also take away their freedom of speech, I wonder?”
That is a canard. I could equally rephrase it:
“Would those who object to voting rights for prisoners also take away their liberty, I wonder?”
………… and it would be equally meaningless.
Now, as it happens, I have very little strong feeling on the matter of prisoner voting, for or against, all that matters to me in this instance is that if the british public want it, and the british parliament reflects that, then that should be the result.
Obviously, we should attempt to comply with treaties where we have ceded sovereignty, and if there is some clever legal finagle whereby parliament can vote on the matter and decline the franchise to every group of prisoner categories then that is just swell, but…………………………
If we come to the conclusion that the margin for appreciation is being improperly implemented with the consequence that judges are assuming a legislative function, and result in judgments that are incompatible with the aims and expectations of british society, then there is a logical way out of the problem:
Leave.
The problem is explained more thoroughly here:
http://www.parliament.uk/briefing-papers/SN06277.pdf
“The Strasbourg court has to a limited extent recognised the fact that while
human rights are universal at the level of abstraction, they are national at the
level of application. It has done so by the doctrine of the ‘margin of
appreciation’, an unfortunate Gallicism by which Member States are allowed a
certain latitude to differ in their application of the same abstract right. Clearly,
that is a step in the right direction. But there is no consistency in the application
of this doctrine and for reasons to which I shall return in a moment, I do not
think that there is a proper understanding of the principle upon which it should
be based. In practice, the Court has not taken the doctrine of the margin of
appreciation nearly far enough. It has been unable to resist the temptation to
aggrandise its jurisdiction and to impose uniform rules on Member States. It
considers itself the equivalent of the Supreme Court of the United States,
laying down a federal law of Europe. […]
The court treats the margin as a matter of concession to Member States on the
ground that they are likely to know more about local conditions than the judges
in Strasbourg. In other words, they assume that in principle they are competent
to decide any question about the law of a Member State which is arguably
touched by human rights but sometimes abstain from exercising this vast
jurisdiction on the ground that it is something which the local judges are better
equipped to do. What I think they should recognise is that we are concerned
with a matter of constitutional competence, that is, whether they have the right
to intervene in matters on which Member States of the Council of Europe have
not surrendered their sovereign powers.22 ”
Now, leaving would not be my preference, I would prefer to see the principle of margin-for-appreciation properly applied, and the specifics of prisoner voting adhered to (the relevant article contains no mention of universal suffrage), but that call is for the ECHR to make. 😉
If you want Britain to remain in the jurisdiction of the ECHR you have two choices:
1. Cause a change of heart in the british electorate in the next months, and commicate that change to parliament pronto, or;
2. Find a legal finagle that allows parliament to continue to deny prisoners the franchise, though via a mechanism other than a blanket ban.
As I said, I don’t really have a dog in this fight, but i will sit back and watch with some amusement as the ‘pros’ twist themselves in knots.
😀
Given Cameron’s difficulties with the Police Federation, perhaps he is considering a return to the rule that prevailed in the nineteenth century, which prevented police officers from voting …
The British public don’t actually get a word in edgeways, between all the politicians creating a fuss to make themselves look important. Probably the public actually don;t care much either way, except for very nasty criminals such as murdeers, rapists, pedophiles. This just isn’t an issue on which energy should be spent on dispute. Some prisoners at least should retain the right to vote, and it’s probably operationally and ethically simpler to allow all prisoners to vote.
I personally do not think that it is up to the Government to pick who can, or cannot, take part in democracy. Therefore, for anything except the most serious of crimes, we should not restrict voting in the same way that we restrict freedom of action. Hence, I do not believe that this is a democratic decision about voting for who should get the vote…
@ Richard –
You have made a similar assertion previously, but the best evidence you could find to support it was user comment on a bbc web article:
https://www.libdemvoice.org/taking-stock-20-years-of-the-single-market-31082.html#comment-226073
However, it does appear that the public support the current system, and by quite some margin:
http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0CDEQFjAC&url=http%3A%2F%2Fwww.angus-reid.com%2Fwp-content%2Fuploads%2F2010%2F11%2F2010.11.22_Prisoner_BRI.pdf&ei=I1KOUPO9MIHU0QWryYCgDQ&usg=AFQjCNFnkFKWsCzhWvteAkvC1e3CFVs-RA
@ Henry – “Hence, I do not believe that this is a democratic decision about voting for who should get the vote…”
Genuinely curious here. If it is not to be british society that determines how british society functions, who is a legitimate fount of benign, disinterested, and impartial, wisdom suitable to be the keeper of such weighty matters? 😀
Jedifeebtrix. You have made similarly limp responses previously. My assertions and arguments are based on an extensive practical experience of British people.
@ Jedibeeftrix
As I understand it, your position is as follows:
1. States should decide internally on domestic issues. Where the majority of the public and the majority of Parliament agree on an issue, the law should reflect that.
2. States should attempt to abide by their international legal obligations but they should not have to if the majority of the public and the legislature disagree to fulfill that obligation.
I can understand your argument, but the unfortunate consequence is that it makes it much, much harder to tackle human rights violations in other countries. If the UK’s position is that countries should make decisions internally and only ever attempt to abide by international legal obligations where they were supported by a majority of the public is that we would be unable to argue against many atrocities being carried out across the world. International human rights law are supposed to protect the unpopular causes, minority groups and the vulnerable from oppression by the majority.
Let’s look at some examples: in Russia, a majority of Russians supported the trial, conviction and punishment of Pussy Riot who were exercising their freedom of speech. In Uganda and Nigeria, the vast majority of the public support the criminalisation of homosexuality and its punishment by imprisonment or death. In these cases, the countries are violating the human rights of their people under international human rights law, but by your logic they are entitled to because public opinion is on the side of the oppressors. Now, these are much more serious examples than the case of prisoner voting, but you cannot let countries decide which international legal obligations they follow and which they don’t because they will always choose not to follow them where they disagree with them, which makes the whole exercise pointless.
The days when states regarded sovereignty as inviolable are over. We have seen too many horrors over the centuries and so, in the1950s, the nations of Europe came together and said that it could no longer be the case that each state decided on whether it provided human rights or not, but that an independent court representing the whole continent would be empowered to decide if a state was fulfilling its obligations or not. We agreed to that. If we start to pick and choose which of our obligations we follow, it gives succour to other states and permits them to do exactly the same in much more serious cases.
@ RW – thank you for the detailed response, much that I agree with even if i do not attach the same emphasis.
More specifically:
Yes, 1 and 2 do accurately sum up my position.
Yes, I do accept that ignoring the ruling would in consequence makes it harder to tackle human rights violations in other countries.
In response I can only offer the following:
1. My first interest is to achieve the best performance of the society i live in, and there is a limit to the degree i am willing to degrade that process in order to assist other societies. Ultimately, people have a responsibility for the society [they] live in.
2. I note the constructive work of ken clarke in that by the end of 2013, the convention would be amended to include the principles of subsidiary and margin of appreciation for the first time. It is to be hoped that this will allow britain to better tolerate the ill-effects of ceded sovereignty.
3. It remains a hope that clever legal minds can find a finagle the meets the ECHR requirements against a [blanket] ban on all prisoners whilst still maintaining an [effective] ban on pretty much all prisoners, in line with the expectations of the electorate and their elected representatives.
Richard Wingfield : Where to begin on your comment on human rights !?
You say:
“In Uganda and Nigeria, the vast majority of the public support the criminalisation of homosexuality and its punishment by imprisonment or death.”
The fact that I can converse here via this laptop, is arguably down to a chap called Alan Turing, who was a mathematician, and incidentally a homosexual. A homosexual at a time when it was also criminal, here in the UK. It is well accepted that his life ended, probably by his own hand due to the treatment he had to endure by the authorities of the time. But today we in the UK are more sophisticated of course, and can finger wave at Uganda, who are backward in human rights terms on these matters?
Cough! Cough! Women being disallowed the right to become Bishops? A blind eye turned to Bahrain and Saudi Arabia’s human rights violation, because they spend a shed load of money with British armament companies?? I could go on, But, so much for our human rights record here and now.
Human rights, are a track or continuum. We may be further along that track than Uganda or Nigeria, but it is arrogance to wag our finger at those behind us on that track.
You say:
“The days when states regarded sovereignty as inviolable are over.”
People have died violent and bloody deaths for their sovereignty, and yet you wave it away with such a cursory comment? Astounding!
@jailhouselawyer, the reason for starting this blog – http://whatwouldborgendo.wordpress.com – was that Danish governance is often referred to as being somehow ideal, but in reality those quoting it just as often don’t really know a lot about the detail.
@jedibeeftrix, ““Would those who object to voting rights for prisoners also take away their freedom of speech, I wonder?” That is a canard. I could equally rephrase it: “Would those who object to voting rights for prisoners also take away their liberty, I wonder?” ………… and it would be equally meaningless.” You can argue every which way I guess, but your example doesn’t really stand up to close scrutiny. Voting rights and freedom of speech are basic human rights in a democracy, while liberty can be withdrawn if the community is judged to be at risk from a fellow citizen.
Quite clearly we are happy to withdraw the right to vote, as it has been standard practice to do exactly that for some time now.
We do not have unrestricted free-speech either, we currently ban:
1. incitement to violence (which i agree with)
2. incitement to “x” hatred (which i do not agree with)
As so often, that enormously prescient work by Orwell “1984” comes to mind. The Two Minutes Hate served up to the proletariat on their unswitchable off television (bear in mind this was written in 1948, when hardly anyone even had a TV set) was used by the regime as a distraction from the real problems facing people. As Wikipedia says “The horrible thing about the Two Minutes Hate was not that one was obliged to act a part, but that it was impossible to avoid joining in. Within thirty seconds any pretence was always unnecessary. A hideous ecstasy of fear and vindictiveness, a desire to kill, to torture, to smash faces in with a sledge hammer, seemed to flow through the whole group of people like an electric current, turning one even against one’s will into a grimacing, screaming lunatic. And yet the rage that one felt was an abstract, undirected emotion which could be switched from one object to another like the flame of a blowlamp. Then the face of Big Brother faded away again and instead the three slogans of the Party stood out in bold capitals:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH”
Prisoners – even those convicted of comparatively trivial offences – are being served up on that screen as we speak. Let’s glory in it as we taxpayers cope with the cost of successful court actions from the worst of criminals because we would not allow those incarcerated for even 6 months to vote – only of course if their sentences happen to coincide with an election in their area.
It is in everyone’s interests that criminals are encouraged to emerge from prison reformed and more inclined to be good citizens. So it makes sense that irrespective of the length of their sentence, at least for the final part of it they should be encouraged to take an interest in current events and community affairs, which logically requires restoring their right to express their opinions and to vote.
Whether we agree or not, public opinion in the UK seems to broadly support removing such rights (or privileges some would say) from prisoners as part of their punishment, but the ECHR has ruled against a blanket ban.
The solution is simple, agree a suitable length of time for the rehabilitation process – maybe a year, maybe longer, maybe less (I am sure there are experts who could advise on this) and adjust the law accordingly. Suppose the time chosen is one year, then if the sentence is a year or less the right to vote is not lost, in all other cases it is withheld until the prisoner is within a year (or whatever) of their expected release date.
Yes, I know it isn’t quite that simple, with reductions for good behaviour and sanctions for offences in gaol, but these are details that can be agreed. What matters is to agree a simple principle that both UK public opinion and the ECHR can agree is sensible and is neither a blanket ban nor pandering to law-breakers.