|“Two men looked out from prison bars, one saw the mud, the other saw the stars.” Frederick Langbridge (Photo credit: antonychammond)|
The consistency argument is valid only if one supposes that continuing to do things in a certain way is entirely justified by the fact that this is the way they have always been done. Or that conforming to what is done elsewhere is an overriding priority. But bad habits do not get better with practice, they merely become more ingrained. Those who would call themselves progressives must always be prepared to question established procedures. Consistency in the sense of avoiding arbitrary and frivolous variation is entirely laudable. Consistency in the sense of being hidebound by tradition is rather less so.
Ms Sturgeon has a case, of sorts, when she cites consistency as a reason for maintaining the blanket ban on prisoners voting. But it may not be quite the case that she supposes. We shall return to this.
Citing existing law as a reason for not changing the law seems glibly circular. The law is what the law is. But what is the purpose of government if not to oversee and guide the evolution of the law within the context of an ever-changing society? There is, self-evidently, some measure of pressure for change. One might readily argue that it is part of government’s function to resist such change. To serve as the (small-c) conservative brakes to the impetus of radical forces that might otherwise be overly precipitate. Brakes must be used judiciously, however, for they will not forever hold against the momentum of social reform whose time has come.
Prohibiting prisoners from voting may well be lawful. But that is not to say that it is right.
But it is when she cites principle that Ms Sturgeon is on the least solid ground. One is immediately moved to ask to what principle she refers. Certainly not the fundamental principles of democracy. Inclusion and participation are surely crucial to any meaningful ideal of democracy. This being so, our concept of democracy must take as its starting point and default position that all are included and that all must at least have the opportunity to participate.
From this initial position it may then be argued that certain persons and groups should be excluded. But the burden of argument must be borne by advocates of exclusion. It is a trivial matter, for example, to argue for the exclusion of infants. It stands to reason that, if age is a criterion, then it grows less easy to argue for the exclusion of persons as they get older. Logically, it must be less easy to argue for the exclusion of persons aged twelve than those aged twelve months. And it becomes extremely difficult to make any kind of case for excluding those who have reached the age of majority in numerous other regards.
Those who would diminish our democracy by excluding prisoners must make something better than a banal populist case that incarceration – and not criminality – is a necessary and sufficient cause for doing what to the committed democratic should border on the unthinkable. Such an argument would have to be very powerful and persuasive. It certainly should be free from glaringly obvious flaws. The argument that the imposition of a custodial sentence is, in and of itself, a sufficient criterion by which to define a person as unworthy of the democratic franchise does not withstand even moderate scrutiny. And, make no mistake, that is what opponents of votes for prisoners are saying. For they cannot sensibly claim that they are arguing for the exclusion of persons on the grounds of criminality if they are not prepared to include all those who commit any kind of crime.
Nor can they plausibly argue that they are referring only to serious crimes. The unfortunate reality is that people can end up in prison for anything from failure to pay a fine for not having a TV licence or petty theft to truly heinous crimes of dishonesty and violence. Meanwhile, those who have committed offences which it might easily be argued would warrant automatic suspension of the franchise, such as electoral fraud or corruption in elected public office, may well receive non-custodial sentences. A blanket prohibition on prisoners voting is, quite simply, illogical and cannot possibly meet the high standard required for the drastic step of compromising democracy.
But it should not be inferred from the foregoing that I am entirely unsympathetic to Ms Sturgeon’s plight. I mentioned earlier that there might be a case, of sorts, for maintaining the ban on prisoners voting based on consistency. I also noted that political expediency might be a factor. Although, on reflection, this might be more accurately (or generously) described as genuine practical difficulty. The problem may be simply stated thus: if the Scottish Government were, for the purposes of the independence referendum, to move away from the blanket ban on prisoners voting, where would it go?
The thought of the legal challenges posed by selective enfranchisement of prisoners must be the stuff of nightmares for Justice Secretary, Kenny MacAskill. Consider, for example, the offence of electoral fraud and two separate cases in which one person receives a custodial sentence whilst another is given probation. To be consistent, suspension of the franchise on the grounds of having committed the specified offence must apply to both. But how would it be possible to retrospectively impose an additional penalty on the person who, for reasons that might have little or nothing to do with the particulars of the offence, avoided being sent to prison? Any attempt to do so would inevitably be subject to a legal challenge. And the number of legal challenges arising from this and other circumstances could conceivably run into many, many thousands. All of which would have to be resolved before the referendum.
And if the cases were not all resolved in time it is even possible that the referendum itself could be subject to legal challenge.
While it is entirely understandable that Ms Sturgeon and her SNP colleagues may be reluctant to grasp this nettle, it is nonetheless regrettable. However realistic one may be about the enormous difficulties involved, there is an unavoidable sense that an opportunity is being missed here. And a niggling concern that failure to find some compromise on the enfranchisement of prisoners will taint the constitutional referendum.
It is, above all, for the preservation of the integrity of the referendum that I would urge Nicola Sturgeon to reconsider. To paraphrase William Blackstone, it is better that ten undeserving persons be afforded a vote than that one deserving person should be denied. The practical difficulties of a selective lifting of the ban on prisoners voting are almost certainly insurmountable. Which leaves a stark choice between maintaining the ban and doing away with it completely. I maintain that the latter is the lesser of two evils.
I will not condemn Nicola Sturgeon for making what is, after all, a perfectly sensible political choice. But I would implore her to reflect on the possibility that this is a time to put ethics before politics.