Votes Behind Bars: Recognising Humanity, Avoiding Responsibility, & Lessons from David Graeber

Overview and a Brief History

‘[T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion’ – Hirst judgment, European Convention on Human Rights

In February 2020, The Scottish Elections (Franchise and Representation) Bill was passed by the Scottish Parliament at a margin of 92 M.S.P.s in favour and 27 M.S.P.s against, ultimately passing by 105 for, 11 against, and 3 abstentions in April 2020, therein becoming the The Scottish Elections (Franchise and Representation) Act. In doing so, this Bill (which required, for the first time, a two-thirds ‘supermajority’ to pass) ‘extend[ed] the category of those able to register to vote in local government elections in Scotland to citizens of all countries with a legal right to reside in Scotland’, barring a few notable exceptions – namely prisoners and asylum seekers. The former, a population Juliet Lyon (former Director of Prison Reform Trust) notes David Cameron and Michael Gove described as ‘potential assets’; the latter, a community readily demonised and treated ‘as if they are criminals unworthy of charity or understanding’ (Roy Greenslade, Emeritus Professor of Journalism at City University London). Whilst the Scottish Greens advocated for including prisoners serving up to four years, the Tories aggressively sought to prevent the Bill from passing. It’s understood the Scottish Parliament’s Equalities and Human Rights Committee made a similar recommendation to the Greens. The Tory M.S.P. efforts failed, however, and the Bill became law on the 1st April 2020, whilst as of the 3rd August 2020 foreign nationals are now proactively invited to register. It’s worth noting that the Act also ‘allow[s] all foreign nationals with permanent residency (indefinite leave to remain) to stand for election’ – a significant development on the previous situation whereby ‘only British, Commonwealth and EU Citizens [could] stand as candidates’. The issue of votes for prisoners specifically is part of a far longer struggle, and it’s there that this article focuses its arguments.

Much of the contemporary debate in the U.K. stems from a European Court ruling some sixteen years ago that denying prisoners their right to vote may in fact constitute a breach of the European Convention on Human Rights (specifically Article 3 of Protocol 1). Historically, The Representation of the People Act (1983) denied all convicted prisoners their right to vote in any U.K. elections. Michael Barlet (2012) of Open Democracy advises that the urgency of addressing the disparity was, however, further hastened following a ruling in Case of Scoppola v. Italy (No. 3) (Application no. 126/05) in which the ruling stayed that ‘strong protection of the right to vote, [is] “crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law”’. Despite that, consecutive U.K. Government administrations have stalled on addressing the disparity between the European Grand Chamber ruling and the domestic absence of appropriate policy. At times, efforts to delay progress have been subtle, though, in 2010 (mere months into his first term in office), then-U.K. Prime Minister David Cameron proclaimed that the concept of prisoners holding the right to vote left him ‘physically ill even to have to contemplate [extending the franchise]’. Lyons has argued that this inaction is down to ‘fear of adverse headlines, rather than fairness or the rule of law’.

Summarising the history of the franchise in the U.K., back in 2012, David Feldman (a Professor in English Law based at the University of Cambridge) advised that, when the vote was first extended beyond property owners, ‘the new wider electorate had never been able to vote before [and thus] not extending the vote to prisoners didn’t, therefore, deprive them of any right – they were merely refused a new right’. He added that whilst a drive towards franchise ‘universality’ in the U.K. (at least amongst specific populations) should realistically have meant engaging with excluded individuals (e.g. prisoners), this was never sincerely considered. The constant party political promises of an approach to criminal justice that is ‘tough on crime’ has meant such reform was rarely entertained for mainstream debate. Emphasising the consequences of this stance, more than a decade ago Lyon (2009) argued that ‘[t]here are few or no votes in prison reform and little interest in the rights and responsibilities of those behind bars’, hammering home the message that ‘[o]ne of the reasons is that prisoners themselves can’t vote’.

Specifically on this ‘toughness’, Michael Bartlet (2012) – also Public Interest lobbyist and tutor in Public Law at S.O.A.S. University of London – suggested that:

‘Denying the vote to prisoners appeals to a motley group of those who would like a harsher criminal justice system and Conservative MPs who see judgments of the European Court of Human Rights as “filthy foreign rubbish”. But the arguments don’t stack up. To say those “who break the rules shouldn’t make the rules” is rather glib. The right to vote is the right to have one’s opinion weighed together with others. It is not directly about legislation. Nor does the judgment say that all prisoners should be given the vote. Prisoners are sent to prison as punishment, not for punishment. The overriding punitive element of prison is deprivation of liberty. It is not “civic death”’.

A review co-commissioned by the House of Lords and the House of Commons which addressed prisoners’ voting rights saw Westminster’s Joint Committee on Human Rights heavily criticised the then-Labour Party administration under Gordon Brown (successor to Tony Blair) for their failure to act on the issue. Bridget Prentice (then M.P. for Lewisham East and Parliamentary Under-Secretary of State in the Department for Constitutional Affairs – subsequently the Ministry of Justice) was singled out for repeated delays in providing a ‘clear […] timetable’ for how the Labour Government would correct U.K. legislation following the European Court of Human Rights ruling in 2004. Furthermore, the committee advised that the members ‘were disappointed to learn of […] developments from the Council of Europe’s own website, despite the Minister’s [Prentice] reassurance that we would be kept informed of further work on this issue’. The committee report read as follows:

‘62. Against this background, the Government’s change of approach and failure to set a concrete timetable for its response raises serious questions about its reluctance to deal with this issue. In our previous reports, we have drawn attention to a number of cases where significant delay in implementation has tarnished the otherwise good record of the United Kingdom in responding to the judgments of the European Court of Human Rights. For the most part, these cases have been legally straightforward, but politically difficult. This case appears destined to join a list of long standing breaches of individual rights that the current Government, and its predecessors, have been unable or unwilling to address effectively within a reasonable time frame. The Government should rethink its approach.’

Indeed, Owen Bowcott (Legal Affairs Editor at The Guardian) advised that ‘British reluctance to bring into effect the ECHR’s Hirst judgment has been cited by other Council of Europe states such as Russia and Turkey as grounds for not enforcing other critical rulings, beginning a process that threatened to unravel international respect for the court’. This came despite ample precedent in other European states. Bartlet even advises that ‘France make[s] specific exemptions for a narrow category of offences where there is a connection between the crime and the additional punishment of removal from the electoral register’. The inaction is a result of inadequate effort, not the absence of information on how best to approach the issue humanely or with dignity.

A caveat here to note that some states such as the Republic of Ireland did not legally bar prisoners from voting, but those on the inside were not permitted postal votes with incarceration not deemed grounds for such a request. This was, however, corrected by the Electoral (Amendment) Act 2006. It’s understood that this was similar to recent U.K. legislation in that, whilst individuals incarcerated based on supposed lesser crimes such as debt were able to vote via postal ballot, that same article from García suggests that ‘in practice few exercise – or are even aware of – this right’, adding that ‘[t]he difficulties of applying for a postal vote in custody often prove off-putting’. In contrast, as noted by the B.B.C. (2012) ‘all prisoners can vote include Croatia, the Czech Republic, Denmark, Finland. Ireland, Latvia, Lithuania, Macedonia, Montenegro, Serbia, Spain, Sweden, Switzerland and Ukraine’, whilst ‘[m]ost prisoners can vote in Cyprus and Romania, unless a judge says otherwise’. Bulgaria is an exception where, like some states in the U.S., ‘judges have the power to disenfranchise for life any offender jailed for more than 10 years’ – whilst similar leeway is given to judges in The Netherlands and Luxembourg. That power, in and of itself, should be cause for concern given its openness to corruption or abuse. Indeed, jurors in Bulgaria ‘have so much discretion they can even remove the vote temporarily from criminals who are not jailed’. In Germany, Portugal, and Norway, the vote may only be stripped when the convicted individual committed crimes against the democratic running of the state. Finally, Iceland bars only the most serious offenders from voting.

Prisoner Votes in Scotland

‘The courts have been crystal clear – the blanket ban on prisoner voting is not compliant with the E.C.H.R. Whether people agree with that or oppose it, one thing everyone should agree on is that elections must be compliant with the law. [U]nlike the U.K. government who did not rectify this issue for more than a decade, the Scottish government is legally obliged under the Scotland Act to comply with the E.C.H.R.’
– Michael Russell M.S.P.

The move, in Scotland (that is, The Scottish Elections (Franchise and Representation) Act), was earlier rehearsed during the Holyrood by-election in Shetland back on the 29th August 2019 following the resignation of M.S.P. Tavish Scott, former leader of the Scottish Liberal Democrats. With the Scottish Government having recently gained newly devolved powers in relation to domestic elections under The Scotland Act 2016, the Scottish Constitutional Relations Secretary Michael Russell (of the S.N.P.) advised that the by-election eligibility criteria was amended in order to align it with the 2005 ruling on the European Convention on Human Rights. Understood to have affected as few as five prisoners, those who registered prior to Tuesday 13th August 2019 and who were serving sentences of twelve months or less (or ‘serving consecutive or concurrent sentences which in total do not exceed 12 months’) were eligible to vote for the first time either via post or by proxy. It should be noted, however, that such an approach was earlier trailed elsewhere in the U.K. – down in England where the B.B.C. noted that ‘in 2017 […] voting rights were given to about 100 inmates in England and Wales released on “temporary licence”’. During this year’s Scottish Parliamentary discussions, several M.S.P. were keen to stress during February’s debate that the English and Welsh example enfranchised ‘only allows those on temporary release on polling day to vote’ – something more akin to how the problematic manner in which practices within the Republic of Ireland operated prior to 2006.

As expected, however, the move by the Scottish Parliament to include prisoners was not met without resistance. Conservative M.S.P. Annie Wells (the same Annie Wells who retweeted herself by accident rather than using the @Women2WinScotlans account she or her staff seemingly co-manage), claimed that the incarcerated do not “deserve” the right to vote. She proclaimed that ‘[v]ictims of crime will be furious that people guilty of assault, domestic violence and serious drugs offences will be able to influence our political future’.

Just for context, I want to emphasise the position from which I both relate to the topic and how I am approaching the topic. As a Community Education student prior to 2016, I previously engaged in a number of community development initiatives at H.M. Edinburgh (Saughton Prison), whilst in a professional capacity I have led anti-sectarian workshops in Polmont Young Offenders Institute. Politically, I spent seven years in the Scottish National Party, leaving in 2016 to join the Scottish Socialist Party. My personal politics, my community-based practice, and my university teaching positions centre on Community Development – a field largely focused on social justice, inclusion, and addressing inequality.

My interest in this topic stems from an obvious engagement in Scottish politics, yet I’ve undergone a renewed motivation as a result of recently engaging in mutual aid with a former prisoner (details of which are available at Left Ungagged and Lumpen under the title Prison, Protest, & Mutual Aid: The Robert Danilczuk Story). In addition, my readings and engagement with prison abolitionist texts, historical accounts of anarcho-syndicalism in action, and a desire to better understand restorative justice in criminal justice contexts have driven me to better engage with prison reform, abolitionist movements, and prisoner welfare. Whilst desiring something more radical, for many years, I believed the most realistic step to a very necessary addressing of voter inequality in Scotland was to introduce a residential qualification period after which anyone living in Scotland would gain their right to vote. I also believed that those serving prison sentences set to end within any given electoral term should be eligible to vote. I’ve therefore watched on with interest as this Bill went before the Scottish Parliament, tracking its development and I now welcome the development in many respects.

Yet the reality is that, despite proclamations of the contrary, the new Act does not achieve universal enfranchisement; rather, there remain a handful of telling exceptions. This Act is, no doubt, progress – there’s no sincere argument for doubting that. The debate here, for many, now concerns the suggested social contact between an individual and the state, and a common belief that loss of the franchise whilst in prison – termed ‘civic death’ – is an appropriate punishment for breaking the law. Despite that, there are many who consider loss of freedoms and the withholding of civic rights a ‘double punishment’ – like when a football team both has a player sent off and concedes a penalty. The latter issue regularly features in podcasts or call-in radio discussions around rules and fairness, as well as during dialogues between sporting legislators, but away from the sporting context, the former topic receives fairly little air time.

Those backing a shift from purely punitive measures to more reflexive and relational forms of accountability (e.g. use of restorative justice) need to consider the relationship between punishment and democracy. As Feldman (2012) states ‘people [go] to prison as punishment, not for punishment’. Once again, from a personal perspective, my immediate feeling for many years had been that if someone serving time was due for release within the expected term of office (fully recognising the prevalence of snap elections) then they should be eligible to vote as they would likely engage in civic society during that term. Shifting ourselves in line with other European democracies, even to being on par with Iceland, is surely what we would aim for? We must also remind ourselves that incarceration and criminal proceedings disproportionately relate to poor and working class families and individuals, often further impacting communities of colour or from other minority backgrounds (e.g. Roma, Gypsy, Traveller, or Show People communities).

I want to take a moment now to emphasise the precise division that occurs in Scottish politics on this issue. For avoidance of doubt, back in February 2020 when the Bill was debated, those that voted against it outright were limited to the Scottish Conservative Party. Uniformly, the twenty-seven elected Tory M.S.P. voted in block against the extension of the franchise. A reminder, their names: Brian Whittle (South Scotland), Annie Wells (Glasgow), Adam Tomkins (Glasgow), Alexander Stewart (Mid Scotland and Fife), Liz Smith (Mid Scotland and Fife), Graham Simpson (Central Scotland), Oliver Mundell (Dumfriesshire), Edward Mountain (Highlands and Islands), Tom Mason (North East Scotland), Dean Lockhart (Mid Scotland and Fife), Gordon Lindhurst (Lothian), Liam Kerr (North East Scotland), Jamie Halcro Johnston (Highlands and Islands), Alison Harris (Central Scotland), Rachael Hamilton (Ettrick, Roxburgh and Berwickshire), Jamie Greene (West Scotland), Maurice Golden (West Scotland), Murdo Fraser (Mid Scotland and Fife), Maurice Corry (West Scotland), Peter Chapman (North East Scotland), Finlay Carson (Galloway and West Dumfries), Donald Cameron (Highlands and Islands), Alexander Burnett (Aberdeenshire West), Miles Briggs (Lothian), Bill Bowman (North East Scotland), Michelle Ballantyne (South Scotland), and Jeremy Balfour (Lothian).

Late last year, Francisco Garcia was just the latest to argue that the incarcerated were all too often an electoral afterthought, and, consequently, prison upkeep and prisoner welfare are rarely high up the priority list. It’s probably worth reminding readers at this point that, whilst standards surrounding incarceration might not be considered essential topics, punishment is always a vote winner. This seems consistent across all levels of government as who could forget current Tory M.P. (and lest we forget, Scottish football official) Douglas Ross – now leader of the Scottish Tories – who, when asked what he would achieve if he were British Prime Minister for a day, readily called for ‘tougher enforcement against Gypsy Travellers’.

Out of Sight; Out of Mind

So with regards to both distinct communities excluded from the supposed universality of the new franchise in Scotland (asylum seekers and prisoners), we must urgently ask, once again, what kind of society we want to be. Yet another 2020 death, anarchist sociologist and anthropologist David Graeber encouraged us to ask ‘what is revolutionary action?’, arguing that ‘[w]e could then suggest: revolutionary action is any collective action which rejects, and therefore confronts, some form of power or domination and in doing so, reconstitutes social relations – even within the collectivity – in that light. Revolutionary action does not necessarily have to aim to topple governments’, adding that ‘the continual accumulation of such acts can change (almost) everything’. Graeber, a U.S. American, was raised in a militantly trade unionist family with relatives having fought alongside the Spanish Republicans under the banner of the International Bridges. His understanding of the frequent injustices of the prison system and the need to ensure access to the democratic and participatory structures of a modern democracy, therefore, far exceeds the insights of many of us.

Thus, Garcia’s question of ‘[w]hat does it say about our society that it doesn’t allow those behind bars to have any meaningful say on the issues that will define their future, both inside and outside the prison walls?’ is incredibly apt. Devolution of powers means that the individual Scottish, English and Welsh, and the Northern Irish legal governance structures have their own say on ‘domestic’ votes – the 2014 Scottish independence referendum being a domestic vote and thus open to the Scottish Government’s eligibility criteria; the franchise for the 2016 U.K.-wide in-out referendum on membership of the European Union being set by the U.K. Government.

But in terms of recognising the humanity of prisoners and asking if we accept that the long term ambition (albeit clearly not the reality) is that the incarcerated are able to reintegrate into society, then Boris Johnson’s supposed desire of ensuring that prisons “don’t make bad people worse’ flies in the face of this. Despite this, few could claim that prisons uniformly provide for and protect prisoners to the standard currently expected of them. The Prison Reform Trust previously advised the B.B.C. that forty-four prisons across England and Wales either failed to provide contact numbers for dedicated anti-suicide and self-harm reduction helplines (twenty-two). In a further twenty-two prisons, ‘calls were simply not answered or were transferred to a general switchboard – and the majority that did go through went straight to answerphone’, therein stranding folk seeking support for their emotional and mental health. Indeed, in 2019, the Ministry of Justice reported significant increases in both instances of self-harm and also attempted suicides and deaths by suicide; just a year prior, official rates were recorded as 52,814 incidents of self-harm and a suggested 325 deaths by suicide. These experiences, alongside the reality of incarceration affecting not only the prisoner but also their families, demonstrate the relevance of mental health policy, family support, education, and general health care to those inside and outside of prison alike.

Just as Police are supposed to keep communities safe rather than dispense justice, we need to remember that prisons are intended to support rehabilitation and re-emphasise the relationships individuals hold to society as a whole – they should never serve as a site for revenge. Thus, as far as we can decide with the powers our state currently possesses, we in Scotland must continue to call for full (or if you are so inclined, partial) further extension beyond The Scottish Elections (Franchise and Representation) Act. Part of that rehabilitation, I believe, should be retention of the right to vote. This is a belief that was echoed by the Scottish Parliament Equalities and Human Rights Committee during the considerations

There was a beautifully articulated response I stumbled across whilst researching this article. Amidst the shockingly violent advocacy of bring back the death penalty’ and the largely default ‘you wouldn’t support enfranchisement if you were hurt by [X] crime’, a user named ‘mintaka’ voiced the following:

‘Why should people who exclude themselves from society by living in gated communities have a say in how society is run? Why should those whose wealth or privilege protects them from some of society’s worst problems have a say in how society is run? And if they can have a say, why not those who have lashed out against society? There are many who make society a worse place. Very few of them are in prison.’

This comment hits the mark on the current situation. The realities facing the electorate are already immensely diverse and their socio-economic situations are poles apart. The financially affluent vote on the same manifestos as those in poverty, yet oftentimes the identified priorities within these election promises are lifelines for one community but seen as needless expenditure by another. Incarceration is one vital example. Prisoners may be removed from day-to-day society at large, yet they live their lives ‘on the inside’ (be that whilst on remand or after sentencing) within that same society – albeit tucked away from most of us. They become, for the most part, easy to ignore; easy to forget. Out of sight; out of mind. Many obviously think this is as it should be, that once sentenced an individual should be stripped of many of their rights, yet as ‘mintaka’ comments, the disparities in priorities and electoral hopes between you in Golden Acres and me in West Pilton could easily be every bit as divergent.

There are many incredible community organisations working alongside and with prisoners throughout the U.K. – on education (Shannon Trust), training, art therapy (Creative Scotland, the Scottish Prisons Arts Network, N.H.S. Scotland, The Burnbake Trust), and advice (Prison Reform Trust, Families Outside, Citizens Advice Scotland), amongst others. Many of these bodies are amongst those to have suffered cuts to funding and the loss of partnerships, and who have lost decades-worth of professional knowledge through redundancies under the last decade of austerity. When these services go, so does a great deal of how the humanity of the incarcerated is recognised by the outside. Working to ensure rights such as those of eligibility to the franchise are maintained when individual liberty and freedom are removed is one measure of how a modern and progressive society should treat those it works to rehabilitate. As Lyons (2009) reminds us, ‘[p]eople are sent to prison to lose their liberty[,] not their identity’. Consequently, steps need to be taken to ensure those with the franchise are best placed to cast their vote. Returning to Michael Bartlet (2012), we are reminded once again that:

‘Giving prisoners a stake in society encourages them to take responsibility. Voting is an intrinsic aspect of citizenship and can become part of the process of rehabilitation. Voting is both a human and constitutional right. It cannot be interfered with except for a legitimate end. If it is to be part of the sentence then it is properly up to a judge to take it away and to make clear its connection with the offence. Voting has never been dependent on virtue’.

To this end, Gina Davidson of The Scotsman advised that hustings may take place within the prisons, though this returns us to the debate over which constituency an incarcerated individual would vote in (that of their previous address or the area in which the prison is based). For those able to demonstrate a connection to a former constituency via a former address, the following details the protocol:

‘[F]or the purposes of electoral registration, a convicted person’s residence is deemed not to have been interrupted by their detention in a penal institution. The convicted person is considered still to be a resident, and therefore able to register to vote with reference to an address, if they intend to return to that address on release from prison and will not be prevented from doing so by an order of any court. Alternatively, a convicted person is considered still to be resident, and therefore able to register to vote with reference to an address, where the address serves as a permanent place of residence (for the convicted person alone or with other persons) and the convicted person would be in actual residence there if it were not for their detention. The practical effect is that a prisoner is effectively granted an absent vote at the home address at which they were resident before being detained.’

In circumstances where a fixed address is not possible to obtain, the incarcerated person ‘may need to register via declaration of local connection if they do not have a fixed abode or are prohibited from returning to their previous registered address’. Only in exceptional circumstances would a prisoner register to vote in the constituency in which the prison is based. Section 22 of the Explanatory Notes outlines that if ‘the prisoner could only give an address from which they are prevented from residing at because of an order of any court, a prisoner can register to vote by a declaration of local connection with reference to the prison as the “required address”’.

In closing, voting rights are an ever present topic in the Scottish context. Ever rising support for Scottish secession from the U.K. has led to panicked attempts in Westminster to look at alternative eligibility criteria that may address the surge. One such approach advocates allowing the some 795,000 Scots-born folk living elsewhere in the U.K. to vote in any future referendum – a dramatic increase in the circa 3,600,000 voters back in 2014. This isn’t a debate set to disappear anytime soon.

And just for a timely return to the recently deceased David Graeber, we need to remember, ‘we humans we are fragile biological entities who will die unless we take care of each other’. Folk on the inside are limited in the actions they can undertake and, consequently, many rely on advocacy and support from their families, supporters, and community services. We on the outside, therefore, need to recognise the humanity of others – especially those we don’t readily see on the day-to-day. Perhaps this Act from the Scottish Parliament can serve as a reminder of that.