Andrew McLellan: Duty decrees prisoners have vote

Picture: Neil Hanna
Picture: Neil Hanna
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If governments ignore the law, they send the wrong message to the criminals in society, writes Andrew McLellan

There is a good deal of talk about votes for prisoners. Governments in Edinburgh and London are doing their best to continue the absolute ban on prisoners voting. They should think again.

The most significant argument for granting votes, at least to some prisoners, is respect for the law. In 2004 the judgement of the European Court was that the complete prohibition of voting for sentenced prisoners is unlawful. The UK government appealed against that decision and lost. At that time Attorney General, Dominic Grieve, acknowledged clearly that the UK government would have to comply.

What has happened since, however, is that many people have shouted loudly that it is permissible to try to get round the law if you don’t like it.

So there are questions about the exact nature of the authority of judgments of the European Court; about how far the European Convention on Human Rights is part of the law of the UK and of the law of Scotland; about how limited a franchise it might be possible to get away with granting while complying with the judgment; and, in Scotland, about whether a judgment about voting does or does not apply to a referendum.

All of which is unedifying. David Cameron has made it clear that he does not like the prospect of prisoners voting: he famously said that it made him “sick in the stomach”. There is cross-party support for his position in Westminster, and in Edinburgh the Scottish Government has indicated that it will not at this stage grant the franchise to prisoners in next year’s independence referendum – but it is “prepared to listen”.

How much better a government would behave if it were to declare “we do not like this judgment but we are determined to uphold the law”. In particular, where prisoners are concerned, it is essential to show that respect for the law is paramount and that it is a sign of weakness to try to find wriggle room. Prisoners, of all people, need to understand that the law is not there to be avoided.

Lord Mackay of Clashfern, the former lord chancellor was right when he criticised the failure of the government to comply with this ruling of the European Court in these terms: “The [European] Convention was initiated… to deal with the terrible persecution of minorities in Germany… if we believe in the rule of law, we are just as much bound to observe the decisions of the European Court on matters within their competence as we are to obey the decisions of our own courts in matters within their competence.”

There is more than respect for the law involved in this debate. There is also the question of how prisoners should be treated. There are three reasons why continuing the blanket ban on their voting is a bad decision.

It has no punishment value. The old argument is that part of the punishment of a prison sentence should be exclusion from the ballot-box. Such a punishment has no deterrent value. It is inconceivable that anyone has ever been persuaded not to commit a crime by the threat of being forbidden to vote. It has no retributive value. In seven years of listening to prisoners on an almost daily basis I never once heard one tell me that it was the recognition that there would be no opportunity to vote which had made the reality of his or her punishment clear. And denying the vote has no rehabilitative value.

Quite the opposite. If prisoners are to be rehabilitated into society they need to learn to behave like good citizens, and this is the second argument for prisoners’ voting.

We will only live in a safer country when criminals stop committing crimes and start becoming normal members of society. It makes no sense to prevent them from beginning to behave as useful members of the community. This is not about being soft on prisoners. It is about treating prisoners in ways which might reduce the number of victims

And there is a third point. How we treat our prisoners is a sign of the kind of people we are. Nelson Mandela was one of many to suggest that the way we treat the lowest members of society tells you what kind of society we live in. This is Mandela reflecting on his first day in a South African prison. The account itself is wretched; and at the end of it he says: “No-one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

I want us to treat our prisoners very decently because I want ours to be the most decent country in the world. There is no evidence that treating prisoners badly makes anyone safer. The claim that those who care about prisoners do not care about victims is plain silly. There is no logic behind the claim, there is no evidence to support it, and I have never met anyone who cares about prisoners who does not care deeply about victims of crime.

Maybe the debate is starting in the wrong place. There have always been arguments about whether voting is a duty or a privilege. If you assume it is a privilege then that easily leads to an instinctive desire in punitive people to deny the vote to prisoners.

But if you assume voting is a duty you start to move in a different direction. If voting is a duty then it is quite wrong to prevent prisoners from carrying out that duty.

All of us, in this way of thinking, are obliged to participate in our communal life. A ban on voting for prisoners might just turn out to be a powerful message that they ought to avoid doing their duty.

• The Very Rev Dr Andrew McLellan was Her Majesty’s Chief Inspector of Prisons for Scotland from 2002-9.