The cadaver stirs. Since the Forfeiture Act of 1870, convicted offenders sentenced to a term of imprisonment, and accused people held on remand, have suffered the additional punishment of civic death, which involves the loss of citizenship rights, including the right to vote.
It has been known for some time that the blanket ban's days were numbered. Another nail was hammered in the coffin yesterday when the Court of Session, hearing the appeal of a former prisoner denied the vote in 2003's Scottish Parliamentary elections, ruled the prohibition was incompatible with the European Convention on Human Rights (ECHR). This followed a judgment of the European Court of Human Rights in 2005 that banning John Hirst from the polls while serving a life sentence for manslaughter had breached his right to participate in free elections.
There is a public debate to be had about lifting the ban and the case for and against, as well as the practicality of, limiting it to certain categories of prisoner. Electoral law is the responsibility of the Westminster government and it set the consultation ball rolling last month. This will run until March. Then the detail of how the law is to be changed will be worked out. The timetable is too tight to lift or restrict the ban before May's Scottish Parliamentary elections.
If these elections are incompatible with the ECHR, as the Court of Session has ruled, what are the implications? There are two. The first is to postpone the elections until the law is reformed. That is clearly a non-starter, given the unacceptably disproportionate impact the convention would have on a free election, which is, after all, democracy in action. The other is to press ahead with the poll and face up to the consequences.
These have already become apparent. Lawyers intend to seek an interim interdict against Scottish Executive ministers to stop the elections. If that fails, they will try for compensation for prisoners whose human rights were denied by the continued ban. Based on an earlier compensation award fought in Europe on similar grounds, the bill could be some £7m to the taxpayer as there are about 7000 prisoners in Scotland. There is, on balance, a case for enabling prisoners to exercise the franchise. Giving prisoners the vote could help with their rehabilitation and demonstrate to them that they can effect change. The community in its entirety votes government into power and its authority, as the legislature, is undermined by disenfranchising certain groups. But we have grave reservations about compensating prisoners who are disenfranchised. Given the likelihood that many will not be on the voters' roll, there would not be grounds for blanket compensation.
Compensation has been paid to prisoners forced to slop out while sharing a cell: a degrading, dehumanising and outdated practice. A voting ban is antiquated but neither degrading nor dehumanising. It seems insultingly vexatious to seek to put a monetary value on it.
Was this another example of the Westminster machine paying scant attention to Scottish interests after evidence of the marginalising of Holyrood's officials by their Whitehall counterparts in Europe? It looks that way. The Union dividend, trumpeted by Labour on both sides of the border during recent days, has been undermined as a consequence. Could Scottish ministers have done more, earlier, to avoid what has become a damaging embarrassment for the Holyrood administration in the run-up to May's poll? Given the executive's record in adhering to the ECHR, why were alarm bells not sounding louder among officials and their political masters? The eye was taken off the ball.
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