Michael Kelly: Now Labour must lead the way on penal reform refundemental reform

The issue of votes for prisoners offers an opportunity to re-examine the broader policy of how we deal with wrongdoers

PRISONERS in the UK have the right to vote. That is the simple judgment handed down as long ago as 2005 by the European Court of Human Rights. Yet six years on we are faced with the prospect of paying out millions of pounds in compensation if prisoners entitled to vote in Scotland are denied this right in May's Holyrood elections. We are in this mess for one reason - governments' unwillingness to face up to the European Court's unequivocal, majority ruling. Ever since then, first Labour and now the Conservative-led government have been dodging the issue.

It is rather ironic that on an issue which concerns how to treat people who break the law, politicians are reluctant to follow a clear legal obligation. True, it is possible to argue that the basis for the European Court's decision is flimsy. Neither the UN nor the European statements on human rights include the right to vote as fundamental. The court relied for its conclusion on the phrase "the free expression of the people in the choice of the legislature" in the protocols to the European Convention on Human Rights, to which Britain is a signatory.

Opponents argue that this is an interpretation too far and that voting remains a privilege rather than a right. However, as the system under which prisoners are detained can only be changed by the political process, it seems undemocratic to exclude those affected from that process. And the government has accepted that it has a legal obligation to implement the ruling.

As it should. The role of prison should mainly be to re-educate and reform. The point of it should be to deter prisoners from returning to a life of crime, once more to be picked up by a system that costs society over 40,000 a year for each prisoner. Harsh and dehumanising treatment does not achieve that. Treating prisoners as human beings helps - a simple measure which Scottish prisons find difficult to do (witness the resistance to ending slopping out). Treating them as citizens - which they still are, even in jail - would give society a better chance of producing people who contributed to rather than damaged their communities. It was Members of Parliament in the 19th century, who, in the wake of the modest voting reform acts, complained that they would now have to educate their "masters". They now have to chance to extend that philosophy to prisoners.

But, of course, there is a great reluctance to make any moves on penal reform. This springs from a fear of upsetting our bloodthirsty electorate. Consult them and they would bring back hanging and "throw away the key" for those lucky enough to escape the noose. The public has nothing to contribute to making our prison system more humane and effective in cutting crime.But go along with their preference for Dickensian prisons and you avoid their ire.

One can expect Tories to kowtow to these populist sentiments ignoring "bleeding heart" Lib Dem concerns. The SNP is no better. But it is the Labour Party which has lost its moral way on crime and punishment. The issues of votes for prisoners should have been settled by the Labour government years ago. But in its anxiety to identify with victims the party has become reactionary and uncivilised. Instead of being in the forefront of liberal opinion it is advancing arguments supporting longer and more frequent sentences simply to keep criminals out of communities they have plagued. That policy certainly has plenty of popular appeal but it is a counsel of despair.

That despair is deepened when Richard Baker, Labour's justice spokesman in Holyrood "shares deep public concern at … serial killers, rapists and paedophiles" being allowed to vote which, of course, misses the point that the European ruling was against a blanket ban on prisoners voting. It leaves the UK government to determine the details. But any anti-paedophile jibe always produces a positive popular response and politicians continue to use it even though in the past it has triggered vigilante action against paediatricians - such is the sophistication of our concerned citizens.

The responsible and progressive way to treat the narrow argument about a prisoner's right to vote is to extend it to an examination of the whole of the penal system. It is a mark of failure that we are considering building more prisons, that we have such a high proportion of the population in jail, that any alterative disposal of criminals is viewed as softness and weakness. The other view is advanced by the Howard League for Penal Reform which believes that well resourced and well structured programmesraise public protection, bringing down the rate of offending and repaythe damage done by crime in a way which custodial sentences cannot - less hysteria and more sense.

Yesterday it was good to see the introduction, by the SNP government, of a new law to substitute to shortest custodial sentences with community service. However this needs strengthened. The new law "encourages" sheriffs and judges to use community service. It should compel them. Too often a conservative judiciary holds back reform. Secondly it should be extended beyond short sentences to those even of years in length as the long as the criminals do not pose a danger to the public.

A recent high profile example of that in Scotland is Tommy Sheridan. It would much better serve society his cleaning up litter than preaching politics in Barlinnie. A prison sentence for perjury in a civil case seems to come more from a desire by the courts to stand on their dignity than for any benefit to society. The same goes for the News of the World journalist jailed for phone hacking. Community service would have been sufficient deterrent.The comfort for both of them is they will probably get books out of it. Sweeping the streets would not have such an anti-heroic ring.

An unpopular issue like this is the acid test of liberal standards. The Labour Party should take a good hard look at itself.