Prisoners of their own self-importance

The claim that prisoners have a ‘human right’ to vote shows how high sounding language can have little meaning save to trump the views of others.

As an issue of penal policy the controversy over prisoners being allowed to vote is inexplicable. It was never an issue in British politics until the European Court of Human Rights (ECHR) made it into one. And it only became an issue in that court after a postgraduate student on the lookout for an original dissertation subject ‘stumbled across a single sentence in a textbook that said prisoners couldn’t vote’. The student enlisted the interest and support of the Prison Reform Trust and then ‘worked with solicitors to set up a High Court test case under the Human Rights Act to challenge the ban’. This case was the forerunner for the John Hirst case that resulted in the ECHR ruling in 2005 that the British ban was unlawful.

As befits a campaign with negligible social roots the intended beneficiaries, prisoners, have not shared the interest shown by those who claim to campaign on their behalf. As the former home secretary, Jack Straw, observed during the prison-vote debate ‘almost no prisoners of their own volition ever sought [the vote], which still fewer would exercise’. Furthermore, the substance of the argument in favour of reform is one that satisfies few outside of the Prison Reform Trust. It is claimed that giving prisoners the vote will instil a sense of civic responsibility and hence reduce reoffending rates. ‘Overblown’ is one word that comes to mind in reply.

Yet this peripheral issue of penal policy, supported by few and with dubious merit, has assumed great importance in British politics. How is it that this intrinsically unimportant issue has made the prime minister feel physically sick, caused a lively five-hour parliamentary debate, and prompted the Sun to call on the government to ‘go to war on the Euro law’? In a word or two, the answer is ‘human rights’. Drop the words ‘human rights’ into an argument and non-issues can become matters of great importance.

What is it about the words ‘human rights’ that gives them their majestic quality? Maybe John Hirst, the prisoner who took the case to the ECHR, can explain. On the BBC’s Daily Politics show, he was asked why he should have been allowed to vote given that he had taken away the civil rights of his landlady, who he had killed. Hirst indignantly asserted that voting was not just a civil right but was a human right; an explanation which he clearly thought entitled him to win the argument. When pressed further, Hirst explained that human rights were of such importance because they were what ‘we got after the Nazi regime put six million through the gas chamber’.

There is, of course, no link whatsoever between the unique horror of the Nazi regime and prisoners being allowed to vote. But the attempt to link the two with the words ‘human rights’ shows how the words can serve merely as a substitute for an argument.

Shortly before the parliamentary debate on whether to comply with the ECHR ruling Thomas Hammarberg, the Council of Europe’s commissioner for human rights, was dispatched to make the case for prisoners having a human right to vote. In a Guardian article he claimed ‘it may be sobering to remind ourselves that democracy was once established through the idea of universal suffrage’. May it? I think not. The link between universal suffrage and prisoners being allowed to vote is incapable of being sustained by the words ‘human rights’. I don’t wish to be unkind to Hirst and the earnest lawyers who steered his case through to the Strasbourg court, but his campaign cannot be put on a par with Chartism, the Suffragette movement or with others who over decades struggled for universal suffrage.

The absence of any important principle behind the votes-for-prisoners argument is highlighted by the uncertainty over what the ECHR ruling requires. Nobody knows whether prisoners serving sentences over one year could lawfully be denied the vote or whether the tariff should be four years. Or, as a more recent ECHR case suggested, is it only lawful to impose a ban as a matter of judicial discretion and only where there is ‘a direct link between the facts on which a conviction is base and the sanction of disenfranchisement’. (So, electoral fraudsters lose the vote, shoplifters pay a fine and murderers… you get the picture.) Not for the first time, a decision made on ‘human rights’ grounds has ended in absurdity. But for our purposes, it is sufficient to note the absence of any important principle that is capable of putting votes for prisoners on a par with arguments about universal suffrage.

Hammarberg is left with his claim that ‘convicts are human beings, with human rights’. By joining his dots we are left with this assertion: convicts are human beings, because they are human being they have human rights, because they have human rights they should be allowed to vote. As with Hirst’s claim, this is an assertion that uses the words ‘human rights’ as a substitute for an argument.

Perhaps an eminent human-rights professor can shed some light on the issue. Professor Francesca Klug claims that the human right that allows some prisoners to vote is derived from the fact that it is wrong that ‘everyone sentenced to prison, regardless of how long or what for, should automatically lose their citizenship rights along with their liberty’. To make the point she asked ‘does a single mother banged up for shoplifting cease to be entitled to any rights at all?’

Klug hasn’t mastered her brief since nobody is suggesting that prisoners should be denied ‘any rights at all’. By her example, Klug paints the picture of a prisoner, a single mother no less, in solitary confinement, denied food and water and, for good measure, who is also denied the right to vote. Yet as with Hirst and Hammarberg, Klug is grossly exaggerating the nature of the issue (voting) by putting it on a par with other issues (all rights of prisoners) in an attempt to win the argument. Human rights campaigners seem unable to make the case for a prisoner to have a ‘human right’ to vote without gross exaggeration such as by drawing parallels with Nazi Germany, campaigns for universal suffrage or the denial of all rights for prisoners.

There is no substance to the claim that there is a ‘human right’ for prisoners to vote. That is why those who make the claim are unable to justify it without resorting to bombast, which the Concise Oxford Dictionary defines as ‘high-sounding language with little meaning’. Shorn of its high-sounding language, the claim that prisoners should be granted the right to vote amounts to little more than the suggestions that it might induce a sense of civic responsibility. Put like this, the issue of prisoners voting would never have become notorious.

Although usually lacking in substance, the human-rights label is not, as the prison-votes furore shows, a label that can be disregarded. The essence of human-rights claims lies not in their substance, but in their consequences. To claim a ‘human right’ is to claim a legal right and moreover a legal right that can trump all others. As Professor Klug notes, the Human Rights Act ‘was deliberately crafted as a “higher law”, to which all other law and policy must conform where possible’.

It is the fact that ‘human rights’ are a form of ‘higher law’ that explains the furore over whether prisoners are allowed to vote. ‘Human rights’ is a label that is frequently used to mask an idea’s lack of substance whilst at the same time turning that idea into one that trumps all others with the force of law. If going ‘to war on the Euro law’ means stripping lawyers of their bombastic right to make claims that trump all others, then count me in.

Jon Holbrook is a barrister in London.