I will try. I brought some help on the academic points. In preparation for the meeting, over the course of the past day I looked along my bookshelves—as you do—and found the definitive book on the topic, which I have been reading with great interest over the past 24 hours or so. I knew about the work but had not properly engaged with it until I prepared for the meeting. It is Cormac Behan’s “Citizen convicts: Prisoners, politics and the vote”, and I will leave it with you as a gift. Cormac Behan is at the University of Sheffield, and his PhD was on prisoners, politics and the vote. It picks up the case of Ireland, where legislation was passed in 2007 to enfranchise prisoners. As well as dealing with the moral arguments in a very even-handed way—although he eventually reveals his own position as being in favour of enfranchisement—he reviews the position globally, citing the countries that do and do not permit voting by people who are in prison. He looks at the practical arrangements that were introduced in Ireland and that are applied elsewhere, and he then does something really interesting—he conducts 50 interviews with prisoners about politics, participation and voting in the wake of prisoners’ enfranchisement in 2007. The fieldwork followed the change in the Irish legislation. It is an outstanding piece of work, and even reading just the introduction and conclusion would be tremendously helpful to members of the committee. If you proceed with the issue in another fashion, you might want to consider Cormac Behan as a witness or an adviser if you are considering going down the line of an inquiry.
I will pick up some of the more academic points. Rousseau has been mentioned, and he gets a reference in the book. Rousseau was not a fan of representative democracy, as has been said; he was interested in direct democracy. In fact, some of his ideas about the importance of political participation, political dialogue, political engagement and how that affects the civic health of a polity, a community or a society are contemporary in the context of debates about Scotland—both in relation to the independence referendum and in relation to events since then. For me, the fundamental problem is this. We have heard from the Howard League for Penal Reform that disenfranchisement was conceived of initially as a form of civic death. Rousseau was a fan of the idea of the social contract and, even before him, back in the days of the Greeks and the Romans, the idea was pretty straightforward: if someone breaks the law, they lose the right to make the law. A person who steps outside the social contract and breaks the norms of the group has to be excluded and shunned from participation in the political process.
Originally, in ancient societies and into the middle ages, that exclusion could be permanent, with a person’s civic status so demeaned by punishment that they no longer had the right to life. It was not the state that executed them; anyone could kill them if they wanted to with impunity, because they were non-citizens. That was the most brutal and extreme form of disenfranchisement. As we have moved forward, those extreme forms have diminished, but in more recent history, as we have heard from the Howard League, we have had an oscillation back to political disenfranchisement. I have big problems philosophically with the social contract argument; we could have a long talk about that, but I will be really brief, if I can. After all, we have heard about some of this already.
Picking up on Jan Anderson’s comments about people in the criminal justice system carrying wounds or being—in her phrase—“the walking wounded”, I realise that her point was more to do with questions of trauma or personal loss, but such people are also wounded in a civic sense, in that they have already been substantively disenfranchised before their formal disenfranchisement by punishment. They come from communities where their life opportunities are severely restricted, where health inequalities are profound and where levels of political participation are already minimal and deeply troubling. They are therefore civically wounded, and then as part of their punishment—or as an accidental consequence of it—we apply civic death in the form of full and formal disenfranchisement during their punishment. To make matters more absurd—in my view—we insist that they resurrect themselves civically at the moment of their release and enter back into society, fully prepared to make a robust and rounded contribution as politically and civically engaged citizens. That is completely paradoxical. The problem arises from the fact that we are holding on to ancient and medieval sentiments that drive the desire to exclude while at the same time trying to have a modern conception of reintegration. My fundamental view is that we cannot have both.
Other problems with the social contract are that, as Patrick Harvie has explained, it is arbitrary in the way in which we apply it. If you wanted to look at a group of people who could, legitimately, be excluded from political participation, the first group that I would suggest be targeted would be tax avoiders. If you do not pay tax, why should you have a say over how the tax is disbursed for the collective good? Strictly speaking, it is not an offence; it is certainly not a crime that is prosecuted through the criminal courts—unless it is full-blown evasion, and even that might still be a civil law matter. Nonetheless, we have a society in which people who avoid their tax liabilities still have profound influence in political processes, including through the funding of political campaigning. On the other hand, we remove from civically wounded people all their rights to participate and regard that as somehow just. In my view, there are absurdities in the broader social contract position.
I want to finish by moving on to the legal position, although I should first point out that I am not a legal expert or a law academic. All that the European judges were arguing was that an arbitrary ban was wrong and that, if we were going to exclude people from political participation as a result of the imposition of the punishment of imprisonment, we would need to justify that. That was all that they said—it had to be justified. The basis of their argument is that the punishment is the deprivation of liberty and nothing that is not an inevitable consequence of the deprivation of liberty is entailed by the deprivation of liberty, and they apply that principle across a range of issues in respect of the continuing civil rights of prisoners. The judges said to us—or to the UK Government directly—“You have to decide. Either you make law to determine whom you want to exclude from the political process, or you get your judges to disqualify people from voting and make it an explicit, public and transparent part of their punishment.” Both positions are fine, tenable and can be argued; personally, I disagree, but I can live with the situation if we are prepared to justify it. It is the fact that we are prepared to do this thoughtlessly and routinely, without even any discussion of the question of the link to the offence, that I find particularly problematic.
My view would be that the current position is philosophically inconsistent to the point of being morally wrong and absurd. It is not that we cannot exclude people from the process; it is just that, as the Howard League has said, we must be much more careful about deciding if, how and when we do that and who we do it to.