"Voting is not just a self-important ‘right’, to be exercised as just another arrogant entitlement. It is also a sacred duty and privilege"
As Mr Campbell said in his article on Sunday, while the UK ban on prisoners voting was codified in the Representation of the People Act (1983), felon disenfranchisement has been a principle Britain has adhered to for well over 100 years. It is, perhaps, for this reason that I cannot fathom why this is even debated. It seems perfectly natural that prisoners should not be entitled to vote. Maybe, also, I have simply read too much Hobbes and Rousseau. Because I subscribe to the concept of ‘the social contract’, it seems clear to me felons have broken their social contract and, in so doing, forfeit their right to participate in civil society. This is why they are denied their liberty and why they should be disenfranchised. Those who break the laws should not elect those that make the laws. This seems entirely logical, rational and reasonable.
A few years ago, the European Court of Human Rights, the supranational court established by the eponymous European Convention in 1959, ruled the UK ban on prisoner disenfranchisement an infringement of prisoners’ human rights under Protocol 1 of Article 3 of the ECHR. This ruling resulted from a case brought by John Hirst, a convicted killer then serving a 15-year sentence for manslaughter. Mr Campbell says most people regard the ruling as being “somewhere between muddle-headed and dangerous.” Let me pin my colours firmly to the mast; this ruling is profoundly dangerous… not to mention insipidly stupid.
Mr Hirst is a poster-child for the sheer dumbness of this ruling. He is a career criminal. From an early age he was involved in burglaries and robbery and was first gaoled in 1971 for arson. It was while on parole from a two-year burglary sentence that Hirst savagely murdered his landlady, Mrs Bronia Burton. Apparently, she committed the unforgivable sin of “nagging” him when he went out, so he hacked her to death with an axe. He is record saying he feels “no remorse” for this crime. He later pleaded guilty to manslaughter on grounds of ‘diminished responsibility’. The judge who sentenced him called him “an arrogant and dangerous person”. He ended up serving 25 years, after he attacked a prison officer and was transferred to a high-security unit. The real problems started after a do-gooding idiot called Stephen Shaw visited Hirst in prison. Mr Shaw was then Director of the Prison Reform Trust and gave Hirst a book entitled Prison Rules: A Working Guide. Thus ‘Britain’s Most Litigious Prisoner’ was born. He successfully used the book to launch a series of lawsuits against prison governors, at one point submitting up to nine written complaints a day and advising other inmates on how to pursue their own multifarious litigation. These are the sorts of people we want to further empower?
There are several other points in Mr Campbell’s article I want to pick up on. The first is the question of the Court’s jurisdiction and whether it has the authority to direct Her Majesty’s Government to change the law. The simple answer, again, is “No”. Both HMG’s chief legal adviser, the Attorney-General, and the Lord Chief Justice have stated UK courts are not bound by the rulings of the European Court. As the Attorney, Mr Dominic Grieve QC, put it: “…The principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting – where strong, opposing reasonable views may be held and where Parliament has fully debated the issue – the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation.” This is Mr Grieve’s very lawyerly way of saying to the European Court, “Butt out!” While the UK, as a member of the Council of Europe and signatory to the ECHR, is bound to “take account” of the Court’s ruling, it is for member states of the ECHR to ensure it is abided by, not the Court. Put bluntly, the Strasbourg Court has no business intervening in cases that have already been properly considered by the national courts applying the Convention. As we like to say here in Essex, the Strasbourg Court can “do one”.
Mr Campbell makes a basic – but common – error by tying the European Court’s ruling with our membership of the European Union (thereby implying that antipathy to it is somehow the result of ‘euroscepticism’). Breaking with the EU is irrelevant to this debate, as the Court and the Convention are nothing to do with the EU. Both were created before the EU even existed. It would not be a question of leaving the EU but abrogating from the ECHR. This may need to be looked at, as I see very fundamental problems with the way in which our national courts, including the Supreme Court, are being undermined by Strasbourg – an increasingly activist court, which has undermined its own legitimacy by making increasingly absurd rulings drawing on the spirit rather than the letter of the ECHR. In any case, however, it does not affect the substance of this particular debate. We are not bound by this ruling, pure and simple.
The Prime Minister, David Cameron, won considerable scorn from the usual lefty elements with his claim that the idea of giving prisoners the vote made him “physically ill”. I for one am confident, however, that this mirrors the feelings of the vast majority of right-thinking Britons. It may be an ‘emotional appeal’ to say murderers and rapists, some of whom will have denied other human beings their vote forever, should not be allowed to participate in elections with the rest of law-abiding society. Basic common sense is the reason this argument resonates! Waffling away about the “backgrounds” of law-breakers, acting as apologist and excusing their crimes because of “deprivation” or blaming ‘poor civic engagement’ is just fatuous, intellectually and morally bankrupt tosh. There are tens of thousands of people from deprived backgrounds who make it through life without hacking anyone to death with an axe. Allowing prisoners to exercise the franchise while gaoled trivialises their crimes. I happen to agree voting is pretty fundamental for a free person in a free society but these people are not free. They have been denied their freedom precisely because they abused it, broke the law and are a danger to society. Depriving them of the franchise is simply a logical extension of the denial of liberty. If denying prisoners the vote violates their ‘human rights’, surely deprivation of liberty – incarceration itself – violates human rights? This seems the absurd logical conclusion to this woolly-minded line of reasoning.
Mr Campbell goes on to assert that felon disenfranchisement is in some way ‘cruel and unusual punishment’ for its perceived arbitrariness. Because it is only by chance a prisoner may be in gaol at the time of a General Election, those denied the vote are, technically, more severely punished than inmates who serve an identical sentence that does not clash with an election. Well, tough-titty-toenails! If you happen to be in gaol at an election, not being able to vote is another consequence of your breaking the law. If that makes their incarceration twice as punitive then I guess they have twice the incentive not to do it again!
What about prisoners released the day before an election? The clue is in the question. They are not in prison. They are still a killer, rapist or paedophile but there is nothing we can do about that. There is a debate to be had, I dare say, on whether serious offenders should be denied the vote for life but, for now, we operate on the assumption that someone released from gaol has repaid their debt to society. If they are living freely and law-abidingly within the community, then it is only right their vote be restored along with their liberty. Mr Campbell is correct; the debate revolves around prison, not crime. No-one (to my knowledge) suggests ‘criminals’ be denied the vote. The law says ‘prisoners’ are denied the vote. Whether or not you are currently a guest of Her Majesty’s pleasure is the yardstick and seems a perfectly sensible one.
Mr Campbell sums up saying he feels “voting may help in developing [a] sense of responsibility [among prisoners]”. I am afraid I just do not buy that argument. I find it distinctly wishy-washy. A ‘sense of responsibility’ should begin with taking responsibility for their crimes and it seems apparent there are too many people ready to ‘excuse’ criminality on the basis of some hard-luck story or an unhappy childhood. Another fundamentally problematic area, identified by Mr Campbell, is voting ‘as a right’. He agrees with the European Court that voting is an “unalienable right” denial of which suggests either “prisoners are not human” or “voting is not an inalienable right”.
Voting is undoubtedly the birth-right of all freeborn Englishmen but we should never lose sight of the fact that this right was paid for by the blood of countless generations before us who laid down their lives on the altar of freedom so we might live in peace, freedom and security. In this sense, voting is not just a self-important ‘right’, to be exercised as just another arrogant entitlement. It is also a sacred duty and privilege. The debt of honour we owe to our forebears demands we treat the franchise in a far more sacrosanct way than is currently in vogue. We live in an era when everyone knows their ‘rights’ but cares little for their responsibilities. If we valued the vote and treated it with the respect it deserves, we would never entertain the notion of extending it to murderers, rapists, violent thugs and paedophiles languishing in gaols. The idea would be abhorrent and this debate unnecessary.
I do not deny prisoners are human. They are, however, humans to whom the usual courtesies of civic life are denied because of their refusal to comply with our laws. In this sense, I guess I do deny voting is an unalienable human right. The vote should be the expected right of those humans who sign up to the social contract and participate as law-abiding members of society. Humans who flout the social contract should have no expectation that they will continue to be afforded all the benefits of civil society until they have proven they can abide by the same laws as everyone else.
Already I sense Mr Campbell perceives a libertarian existential crisis in this “exception approach”. I dunno’, something about prisoners not voting making my roof leak (read his article). Mr Campbell is clearly not a student of history. My late grandmother was born in 1909. It was not until the Representation of the People Act (1928) that women were given the same voting rights as men. So, almost within living memory (she only died four years ago, though she would be 102 if she were still with us). Nan was 8 years old when the earlier Qualification of Women Act (1918) was passed, allowing women over 30 to vote. She remembered her mother voting – for the first time ever – at the subsequent General Election. She first became entitled to vote herself in 1931 but did not actually exercise her right until 1945, because she refused to vote Conservative while Stanley Baldwin was leader, blaming him for the terrible General Strike of 1926. His name remained a dirty word in her house over eighty years later. But I digress. My point is, voting has never been some magical ‘inalienable’ right. It was the efforts of the Suffragettes to secure votes for women that extended the franchise. In ancient Athens – the birthplace of ‘democracy’ – only wealthy men were allowed to vote. You could not vote if you were a woman, or poor, or a slave, etc. Every time the franchise has been extended throughout history it has been through effort and sacrifice. Natural law gives no presumption of entitlement. Nevertheless, the trend seems largely to have been to widen rather than restrict the franchise, so I think Mr Campbell’s fears in this respect are unfounded. Maintaining the disenfranchisement of prisoners does not create some dangerous precedent that will allow the State to deny it to others.
There is currently a debate to be had as to whether 16-year-olds should be allowed to vote. I am far more interested in a debate about widening the franchise to encompass them than I am in widening it to encompass the detritus of society populating our prisons!
Totally agree with you. If an individual decides to remove him/herself outside the rules of our society, then they should not take part in deciding who we elect to make, and implement, laws. My example would be a simple one – I am not a member of the conservative party….therefore I should have no say in any vote that members take part in.
Posted by janice stephens | November 23, 2011, 9:39 amAs you are not a member of the conservative party you have no say in any vote that the members take part in and equally you do not pay into the conservative party (leaving to one side the vexatious issue of state funding of political parties). Would it be acceptable for people to say: “I don’t want to pay any taxes and am happy to forgo the opportunity to vote”? I suspect not. In any event, you have to agree that voting is not an inalienable right. We may agree or disagree on what provides or denies the entitlement to vote, but it seems that most commentators so far accept that voting is not necessarily for everyone.
Posted by Derek Campbell | November 23, 2011, 10:39 amThe Conservative Party analogy was, perhaps, an imperfect one but so is yours. Resigning your right to vote in return for exemption from tax is just as imperfect. For a start, the two things are not related. If you wanted to stop paying tax, it’s not your vote you’d need to give up but your accessing of everything taxes pay for – which, in this country at least, is pretty much everything. You’d be – in practical terms – unable to function in British society. My conclusion, then, is clear. You’d need to emigrate.
Equally, for anyone thinking of breaking the law, has broken the law and is currently serving a sentence or has been released from prison and is intending to reoffend and they are concerned about their right to vote, my suggestion is simple: at your earliest convenience, kindly move to another country.
Posted by A.P. Schrader | November 23, 2011, 11:41 pmThanks for the comment, Jan. The example you cite is good – as a member of the Conservative Party, I’d certainly take a dim view of non-members electing our leader. In this sense, ‘non-members’ of society should not elect our government. Perhaps a member of the Conservative Party who has been expelled or had his membership suspended might be a more strictly accurate metaphor for the situation with prisoners but, nonetheless, the point is well-made.
Posted by A.P. Schrader | November 23, 2011, 10:29 amSuppose I am a fully paid up member of the conservative party. Suppose further that I write something that the majority of conservatives find disagreeable, so disagreeable that they decide that they do not want me to be a member of the conservative party any more. Thus my actions, and the reaction of the powers that be, contrive to make me an ex-member of the conservative party. Clearly I cannot vote on conservative party matters. And so it should be. But at this time I am not subject to the rules and regulations of the conservative party and have no obligations to the conservative party. My point here is that being a non member of the conservative party is not at all comparable to being a non member of society. We place prisoners under greater regulation, deny them freedoms which everyone else enjoys, including the freedom to vote. Voting, therefore, is a freedom that can be taken away. I am pointing up the fact that voting can be taken away from me, from you from anyone. I accept that it is unlikely, but if you accept that the state can take the vote away from a particular group, my evidence is prisoners, then you have to accept that the state can, in fact, take the vote away from anyone. In this context, does the ability of the state to deny certain people the vote set some sort of precedent? I urge you to be cautious about this matter, the prisoner angle provides more heat than light. My most cynical assessment is that even if you gave prisoners the vote, it would have a negligible bearing on the outcome of general elections.
Posted by Derek Campbell | November 23, 2011, 11:42 amOkay, let’s stick with the Tory Party analogy for a bit.
So, you’re a party member. You write something the rest of us find ‘disagreeable’ and you are suspended/expelled (you don’t specify) from the party. By being expelled, you are no longer obligated to the Tory Party… This is all perfectly true. Being expelled from a political party, however, is NOT the same as being imprisoned. This is why this is an imperfect analogy. Someone who is imprisoned is not ‘absolved’ of their duties to the State. Our duty to the State and the allegiance we owe to the Sovereign of our native land is sacred and indissoluble and that is why we punish those who break our laws with incarceration. We remove them from society. This is not really the same as penning an article slagging off Dave Cameron and getting kicked out the Tory Party.
Yes, people who break the law and are imprisoned are denied the vote but to suggest that this means the State can deny the right to vote from me, from you, from anyone they see fit, is just fanciful rubbish! I mean, it’s perfectly true. Parliament could pass a law tomorrow denying everyone in the country the vote. Technically, the Queen could abolish Parliament altogether, suspend the franchise and become an absolute monarch but I don’t think any of us regard that as terribly likely to happen, do we? And, even if it did, it would not have been made possible simply because we accepted the State’s right to withhold the vote from prisoners.
I do not accept, at all, that felony disenfranchisement provides you with “evidence” that the State could chose to randomly strip individuals or groups of their franchise. It’s utter bilge! It sets no precedent whatsoever. As I have said above, the Queen could strip us all of the vote at any time. That is because universal suffrage, like all such rights, was hard-fought for in centuries gone by. What was given can, necessarily, be taken away but the Queen – and the State – will know that what we fought for once we will fight for again. All rights, ultimately, are underpinned by the popular will. It’s that social contract thing I talked about in my article. It works both ways. If the State started randomly stripping people of their votes, you can be sure the public would be up in arms. The State would have violated their end of the social contract and we would all be absolved of our allegiance.
The fact that the vast majority of Britons are up in arms in their opposition to the Strasbourg ruling, rather than battering down the gates of Parliament demanding prisoners be granted suffrage, ought to tell you something.
Posted by A.P. Schrader | November 23, 2011, 11:59 pmSo we agree, the tory party analogy was imperfect.
Posted by Derek Campbell | November 24, 2011, 6:48 pmI agree with Mr Schrader.
And if prisoners are so aggrieved about not having suffrage, such a privation should help to persuade them against crime in the future.
Posted by James Garry | November 23, 2011, 1:25 pmI agree with you for the most part sir, I feel like many that once convicted of a crime and awarded a custodial sentence an offender should feel that their liberty is curtailed. One such liberty which I feel they should almost always be denied is the power to vote. However, I don’t feel however that this should be enshrined in law as an automatic penalty, rather, for each offence the sentence should be considered to fit the crime, and the sentence handed down should include or exclude loss of voting rites for a period of time rather like driving licenses may be taken away. To make it automatic in every case reminds me of the less free democracies around the world, we should have nothing to fear by considering it in this way.
Posted by Ian Norton | November 23, 2011, 10:18 pmThanks for the comment, Mr Norton. I can understand why a reasonable person might be inclined to give the benefit of the doubt and suggest withdrawal of suffrage be judged on a case by case basis but I suspect this could get rather messy. It seems to me much cleaner, as I hinted at in my article, to keep incarceration as the ‘yardstick’ in these affairs.
If a person’s crime was not of significant gravity, chances are this will be indicated by the absence of a custodial sentence. If their crime is relatively trivial, it seems more likely that they’d be given a fine or some kind of community order. If, however, their transgression has been deemed sufficiently grave that it warrants a custodial sentence, then I think we have to assume that anyone sent to prison should, as a matter of course, not be allowed to vote. This seems to me the most sensible way forward and one that is unambiguous and clearly understandable to the vast majority of the British public.
Posted by A.P. Schrader | November 24, 2011, 12:06 amDerek Campbell keeps making enigmatic comments about how those against prisoners voting, must believe that voting is not an inalienable right. He is correct in my case, but he clearly feels such a point has great import, without really explaining it.
Voting is a means to accountability or democracy or whatever you wish to call it. This accountability is itself a means to good, just and free government. As seeing voting as an inalienable right is not required anywhere in this chain of causality. The implication of it being an inalienable right is quite radical because it is hard to see it can have meaning unless expressing some sort of pure and radically democratic philosophy, which is not, despite what we often tell ourselves, what our system is based on. The Court believes voting is an inalienable human right because they think that democracy, however we define this vague term, is an inalienable human right – with the implication of trying to achieve as much democracy as possible. Either that or they are so wet and silly that they consider voting only from some sort of ‘social inclusion’, where it has nothing to do with real politics, but with equalising any social privileges of distinctions.
Posted by Wessexman | November 24, 2011, 12:37 amLet us consider the proposition that voting is not an inalienable human right. This, clearly, reflects the actual position in the UK at the moment. Is this statement one that the public would support? I don’t know. However, if it is not an inalienable right, what is it? A.P. Schrader mentions voting as a duty, others may see it as a privilege. I believe (obviously I don’t know) that the ECHR is attempting to say to governments that they cannot arbitrarily deny full and equal participation in the political process to sections of their population. The fact that it is the ECHR that have said this appears to make some people very angry, but in fact I don’t believe that there are many people in the UK that find the statement particularly disagreeable. So the issue, when considered calmly is this: does the UK position arbitrarily deny full and equal participation in the political process to sections of the population. A.P Schrader and many others argue that prisoners are denied the vote, but that denial of the vote is not arbitrary. In fact, their position is very clear: custodial sentence equals no vote.
So if we accept that voting is not an inalienable human right, are there, in fact, any inalienable human rights? This is where I think A.P. Schrader is technically correct, parliament can pass any law it likes tomorrow, even denying all citizens of the UK the vote. I, like him, think this is fanciful, but indulge me one moment longer. How as outraged citizens would you go about altering this state of affairs? Presumably protest would be a crime, punishable by incarceration. We have already cut off the appeal to voting being an inalienable right, we don’t think that it is. Obviously an appeal to the ECHR would be futile. If a state, any state not just the UK, denies the vote to any portion of its population, what arguments can be brought to bear if you do not accept that voting should be an inalienable human right? This is at the heart of my enquiry.
Posted by Derek Campbell | November 24, 2011, 9:18 pmI’m a little confused about your reply. Your first paragraph seems to attempt to defend human rights from a majoritarian perspective and your second one from a functional, in terms of individual liberty, perspective. Now I know that the human rights ideologues have always tried to separate themselves from any idea of natural rights or natural law, but human rights make no sense unless they are in some sense derived from objective, natural rights.
As for your last question, surely there are multiple conceptions of rights that could be appealed to, each with advantages and disadvantages. The traditional conservative idea of the historical rights of Englishmen could certainly be used. This conception has been worn down and neglected, but on the other hand it doesn’t have the same sort of expansive, politically correct, anti-national and anti-historical, socially individualist and social democratic side that the ‘human rights movement’ has.
If the government wanted to seize power it wouldn’t make much difference if we preached the human rights ideology at them. It is obviously so vague, so ideological and lacking in attempts at a proper foundation, socially, culturally and metaphysically, that it would have little effect beyond, perhaps, reinforcing a general impulse against the government oppressing the populace.
Whether parliament can pass any law it wants is a debatable point, even beyond the obvious fact that it still requires the monarch’s assent. It can de facto, setting aside the issue of the monarch, because that is the view of the constitution that has come to predominate, but there are differing, often older, views of the English and British constitution. It was certainly common until well into the 19th century for some to claim that parliament had no right to do certain things, particularly when they involved what seemed like the invasion of the historical rights of Englishmen as reiterated in Magna Carta and such documents. This view has faded, unfortunately, with the idea of parliamentary sovereignty(though again the idea that parliament has any sovereignty above the monarch was never proclaimed) coming to dominate as it benefited the left, obviously, and it was easy and convenient for the right. There are still all sorts of issues and disagreements however and we are really in something of a constitutional disarray. Seeing as there has never been officially declared what our current constitution is I suggest we revive the older view, championed by the constitutionalist Tories like the great Earl Clarendon, of the fundamental laws of England that precede parliament and even in a sense the monarch.
Posted by Wessexman | November 24, 2011, 11:18 pmI certainly don’t believe the European Court is attempting to make some oblique point about the British Government “arbitrarily deny[ing] full and equal participation in the political process to sections of their population” and, even if it was, it has no right to! As to your contention that most people in the UK don’t “find the statement particularly disagreeable”, numerous opinion polls beg to differ.
I think you are probably right that, ultimately, I fundamentally don’t believe in the concept of “inalienable human right”. Such a concept would seem to imply that human beings were created, at inception, imbued with a host of ‘naturally-occurring’ democratic rights, whereas I uphold the Hobbesian view that the State of Nature was “nasty, brutish and short” and it is only our social contract with the Sovereign that affords us the rights and privileges of civil society. It is my contention that advocates of inalienable human rights has created a mindset that obscures the concept of ‘rights as hard-won privilege’ in favour of a set of what I called in my article “arrogant entitlements”.
Posted by A.P. Schrader | November 27, 2011, 10:46 pm