21 July 2014

The law’s delay [sic]

“For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely, The pangs of despised love, the law’s delay, The insolence of office and the spurns That patient merit of the unworthy takes…” 
*Biff* In your face, Hamlet. Who says judges lack nimbleness? The spry old customers can get a fair head of steam behind them when they want to. Earlier this month, the Inner House of the Court of Session knocked back an appeal by two prisoners against their exclusion from the franchise in the independence referendum, upholding Lord Glennie's decision - if not all of his reasoning - at first instance. Although the conclusion reached by the Inner House is almost certainly the right one, the judgment left a lot to be desired, and it was inevitable that the disappointed litigants - with legal aid behind them - would take their judicial review all the way to the top. 

What was less clear was the timetable for the UK Supreme Court hearing.  We're a gnat's crotchet away from the referendum, which was bound to focus the Justices' minds - but with remarkable swiftness, they've already summoned the lawyers down from Edinburgh to make their case. The hearing is scheduled for this Thursday, before Lords Neuberger, Kerr, Clarke, Wilson, Reed, Hodge and Lady Hale. As the Supreme Court note on the case neatly summarises, the case turns on the answers to five main legal questions.
  1. Are the provisions prohibiting prisoner voting contained in the Scottish Independence Referendum (Franchise) Act 2013 (the "Franchise Act") incompatible with the European Convention on Human Rights and Fundamental Freedoms (the "Convention"), in particular Article 3 of Protocol 1 and Article 10 thereof?
  2. Do the provisions prohibiting prisoner voting contained in the Franchise Act breach a fundamental common law right to vote?
  3. Do the provisions prohibiting prisoner voting contained in the Franchise Act breach a common law constitutional principle of the rule of law?
  4. Does the Scottish Parliament have an obligation, enforceable in the domestic courts, to comply with the United Kingdom’s international obligations?
  5. Are the provisions prohibiting prisoner voting contained in the Franchise Act incompatible with the requirements of EU law? 
I would be very surprised if the prisoners prevailed on any of these grounds of argument, but as I argued earlier this month, the issues are arguable and important points of principle are engaged. Under the European Convention heading, isn't an independence referendum more akin to a "choice of legislature" question than the Court of Session recognised, when you take Strasbourg's "practical and effective" approach to human rights protection into account? Shouldn't our courts have the confidence at least seriously to consider the question? 

The idea of a challenge to Acts of the Scottish Parliament on "rule of law" grounds popped up in Lord Hope's opinion in AXA. Moohan represents an opportunity to put some more flesh on the bare bones of Hope's largely unexplained aside in a fashion neither Lord Glennie or the Inner House attempted.  From a wider public law perspective, however, perhaps the most interesting dimension of the appeal is the common law fundamental rights questions. 

Although largely unnoticed in the mainstream media, as the Conservative Party continue to denigrate the European Convention on Human Rights, and the Human Rights Act 1998, our top judges are beginning to talk more about the fundamental rights protected - not by the ECHR - but by the common law.

Handing down the Court's judgment in the recent case of Osborn, which concerned when folk up before the parole board should receive an oral hearing, Scottish judge Lord Reed based his decision, not on Convention rights, but on cardinal principles of fairness under the common law. The upshot? Even if the Human Rights Act is repealed and the Convention denounced, the courts will continue to enforce fundamental rights rooted in the common law tradition. Although Osborn drops hints, the extent to which judges will expand their thinking about fundamental common law rights remains an open question. 

The Scottish prisoner rights case which will be heard this week is a clear invitation to the Supreme Court to extend this kind of thinking, and recognise a fundamental right to vote under the common law, distinct from the voting rights set down in successive iterations of the Representation of the People Act. Canvassing the jurisprudence of courts elsewhere, Lord Glennie was persuaded last December that we do have a fundamental common law right to vote - but held that this didn't extent to referendums, saving the Scottish Government's bacon. 

The Inner House were entirely unpersuaded, holding earlier this month that there are no such fundamental rights, and the franchise is governed entirely by statutory rules emanating from parliament. If parliament decides not to recognise your right to vote? Tough luck. Your only solution is to traipse off the Strasbourg, and argue that your Convention rights have been violated. Although I fully expect the justices' answers to this question to be largely neglected in the mainstream press, they promise to be fascinating and important indicators about the vexed question about the future direction of fundamental rights in UK law.

For those of us who despair about the anti-rights drift in British political discourse, it is a flickering candle at the windowsill, increasingly buffeted and deprived of oxygen by illiberal discourse of the Home Secretary and her newly-promoted Europhobic Tory colleagues, reshuffled into the deck. Sometimes, you tremble for this (dis)United Kingdom.

Irregular verbs

The independence campaign is becoming characterised by its irregular verbs.  Last month, it was I disagree with youYou shout me down. Alex Salmond behaves like Kim Jong-il. Today, the Secretary of State for Scotland serves up another stoater in the Herald: I remind people of what it means to be British. You try to make political capital from the endeavour of sportsmen and women. David Cameron. Um. Has an admirable enthusiasm for the colour palette of the Union flag. 

For Alistair Carmichael is fearful that the imminent Commonwealth Games celebrations, funded to the tune of 80 odd per cent by the Scottish Government, will be malevolently manipulated by the First Minister to promote his divisive separatist code. "People in Scotland will," he argues, "react badly to anybody who tries to make political capital from the endeavour of sportsmen and women." Which is splendidly good advice. It is just a pity that Carmichael's own government and his No campaigning colleagues can't stick to it. There is more than a whiff of psychological projection here, which would be more amusing if it wasn't such double-dealing, sanctimonious cant.  

For manipulating major sports events for political ends: that is one thing which UK government would never countenance. Who could fail to notice or be impressed by the jealous integrity with which the Prime Minister has maintained a rigorous firewall between politics & the Olympics? Trawling the internet, one struggles to find Carmichael, heroically swatting at David Cameron's egregious politicisation of sporting endeavour, when he toddled along to London's Olympics Stadium in February to make the positive case for the Union, proclaiming:

"But for me, the best thing about the Olympics wasn’t the winning. It was the red, the white, the blue. It was the summer that patriotism came out of the shadows and into the sun. Everyone cheering as one for Team GB."

You'd have to be awfully cynical and ungenerous to detect a germ of politicisation there. I'm sure British nationalist fellow travellers like Fraser Nelson were cheering Cameron on, thoughtless of any referendum impact, innocent of the political implications which the Prime Minister was none-too-subtly inviting his listeners to draw from his moistening e'en. Nor, despite my best endeavours, could I find Carmichael ticking off his colleagues back in 2012 for taking gleefully to the airwaves to proclaim that Danny Boyle's Olympics opening ceremony had shot Salmond's fox, along with sundry other commentators contending that "Team GB's Olympic triumph has been to suck the air out of Salmond's Scottish balloon." 

For myself, I'm not terrifically interested in the games, Olympic or Commonwealth. I'm a sporting grinch. I wish them well. I hope the mighty endeavour which has gone into planning them is reflected in a grand couple of weeks. I hope others have joy of them. But parking the vexed and vexing questions of patriotism, these Games are unavoidably important for the referendum debate. Wil it or nil it, we can ill-afford organisational cock-ups and Darien-pangs on the Yes side of the argument. Confidence matters. Confidence in the competence of civic and national institutions matters. And like most of life's challenges, the Commonwealth games represents both a splendid opportunity and a potential risk. 

We want the First Minister and the leader of Glasgow city council to be able to take to their pins, and echo Cameron's speech at the opening of the 2012 Games, concluding that "we want this to be the Games that lifts up a city, that lifts up our country and that lifts up our world, bringing people together." The skeptical pub bore already has his script drafted: "If we can't even run an event like this without buggering it up, how can these hopeless chancers run a country?" On the other hand, a well-executed, popular, triumphant games will bring with them a momentary glow - a national buoyancy - which is unavoidably important when thinking about whether Scotland should govern her own affairs.  

I'm sure negligibly few folk minded to vote No are cynical enough to hope that the Commonwealth Games tank - but such calamities and losses of nerve have wider resonances. There's no avoiding that. The success of the Glasgow games are - in a narrow tactical sense - much more important to the Yes campaign than to Better Together. But as to Carmichael and his irregular verbs? I think an urgent trip to the optician is very much in order.

12 July 2014

Nigel's Big Day Out

Nigel is a passionate Highlander. He likes current affairs. He follows politics. He cares deeply about the outcome of the referendum. As good luck would have it, he discovers that Britain's flagship current affairs show is coming to his home town.  Now's the moment, he thinks, to take my case for independence to the British people. Here's the ideal stage, to make my heartfelt case for the United Kingdom to change utterly.

Sitting quietly in the draughty hall as the first few questions are asked and answered, he waggles his hand with increasing urgency, bursting to speak, desperate to catch Dimblebumble's wandering gaze. At last, the ancient compère's eye alights upon him. "You sir," he says. Nigel's gorge rises. His heart pumps, eyes dazzle. At last, he finds his voice, uncertain at first, but then growing in vigour and conviction. He speaks:

"I am born in Inverness. I am a passionate Highlander. And I love Scotland. And I will take a stand to break up this United Kingdom. I will give my life for my country as my grandfather did in the First World War, and his brother Charlie. Highland Regiment! Scottish Army! I am Scottish forever. We will never, never change. We will end this Union, in the name of Jesus. I will break - if it's my own life - I will break up this country with my blood."

Afterwards, he feels cleansed, like he's got something off his chest. The volcanic energies which had been building up in him - temporarily released. Resolving to carry on with his struggle for independence tomorrow, he says a prayer for the departed souls of his grandfather and his brother. That night, he sleeps soundly. "The sleep of the just," he thinks to himself, as he stirs, cheerful and refreshed the next day. A wan sun shines early that morning. A sign that the man upstairs is not displeased, he thinks fondly, as he deposits the kettle on the aga and waits for it to bubble with a welcome peal.

The first sign that all was not well was the incessant ringing of the land line. It starts after breakfast. Usually, the phone's grating trill only disturbed the peace one or twice a week. Now that terrible grating sound bounced endlessly through his cottage. When he gingerly plucked up the receiver, it was little better. Hectoring voices - journalists' voices - at the end of the line. "Are you prepared to answer some questions, Nigel?" "Would you care to comment on your hateful outburst, Nigel?" "Nigel, would you say you are a blood and soil nationalist?" "Where do you hope to be martyred for Scotland, Nigel?" "Does Jesus tell you to do anything else, Nigel?" "Do you use twitter or facebook, Nigel?"

He never lets them beyond the first or second question, planting the receiver down firmly, double-pressing the button at the back to make sure he'd cut off the call. But he couldn't disconnect the line entirely, or just let the phone ring out. His sister might call, or a neighbour, needing something urgently. So he sits, answering each time, each time reluctantly cutting short the ringing. It was around this time that the men arrive outside of his cottage. They seem to be carrying some sort of camera equipment. They skirt the house. He ignores them. Tourists probably, he thinks, on a walking holiday. Nervous he sits in his kitchen, answering the phone, bemusement mounting, drinking cup and after cup of tea. The milk runs out. He can't take tea without milk. He's been taking milk in his tea since his schooldays down in the big city.

A run to the shop, he thinks. Just what I need to clear my head and get me away from this confounded phone. A paper too, perhaps. Yes, definitely a paper. To keep abreast of the affairs of the day, he thinks, as his old father used to say when cracking his morning eggs and reading the financial section of the Times with a judicious merchant's eye. Donning gilet and tie, spruce, he steps out into the sunshine. A burst of photography. Flash, flash, flash. Brighter than the sun.

The tourists, he thinks, shielding his eyes, hurrying into his clapped out old landrover. Just an eagle. Or a deer. The keys won't fit in the ignition - just too much tea, the trembling hands, he thinks - more milk, more milk. With a scoosh of relief, the key sinks home and turns. The engine coughs into life. He pulls out of the driveway and scuds down the single-track road, the gravel thrumming of the ancient engine somehow reassuring.

He didn't expect to see his own face - his image - burning out of the front pages. "NATIONALIST ACTIVIST IN BLOOD AND SOIL ROW" "HATEFUL CYBERNAT INVADES BELOVED BRITISH TV INSTITUTION WITH SEPARATIST THREATS" "I'LL DIE FOR SCOTLAND, SNP LUNATIC WARNS" "JESUS: HE'S NOT THE MESSIAH, HE'S A VERY BLOODY SEPARATIST."

The keys fell with a dull clatter from his numb, trembling hands. His temples throb. Back in Nigel's cottage, the phone rings incessantly. Another dazing burst of photography erupts from nowhere. Nigel shields his rheumy eyes, barely able to focus. Milk, he thinks, milk, trying to keep hold of something tangible - to keep the thread - as he lollops into the local shop, pulling his wax hat down low over his brow.

Miles south, in Glasgow, Rob Shorthouse puts the finishing touches to his press release in the Better Together HQ, crackling with unveiled glee."The Yes campaign has hit a new low. This kind of language is completely unacceptable but all too common from those trying to break up Britain. The mask has slipped. The true face of the separatist movement is revealed. Salmond must act. We will consider referring these hateful and sinister comments to the proper authorities." In Hope Street, a nervous Yes Scotland official reassures the skeptical reporter on the other end of the line that Nigel is a lone eccentric and not really part of the campaign at all.

In newspaper offices across the land, in a fug of instant coffee and perspiration, time-taxed hacks squabble over whether "Cybernat" should be capitalised and put in inverted commas in their copy. Bored journalists phone around old work colleagues and neighbours for choice anecdotes about how Nigel always seemed like a nutter liable to leak his bodily fluids in pursuit of independence.

Peals of laughter rise from Scottish political staff in the Telegraph, Daily Mail and the Express as they gleefully put the boot in with thundering editorials about the evil spirits unleashed by this referendum and the "dark heart" of the case for separation. Labour press officers ponder creative ways to link a lone Highland weirdo to the First Minister's office. "Have they ever met? Can we find out?" Paul Sinclair rubs his hand, as he sits down to write Johann Lamont's script for FMQs. "This'll be an easy week," he thinks, gratefully.

And Nigel sits in his cottage, with the lights off, curtains pulled, phone tolling a constant judgment. He never did buy a paper that morning. Or the next.

What a difference a day makes

A month ago today, I asked for a wee hand. You responded with remarkable generosity, from all side of the independence debate. In just under 24 hours time, the shutters will come down on my Indiegogo campaign, which is currently sitting pretty on a remarkable £1,920, some 256% of the sum I - very tentatively - asked for back in June.  

Separately, you contributed a further £664.07 on top of that via paypal (the somewhat curious total deriving from the patriot who chipped in £17.07), making for a grant total of £2,584.07.

Your contributions will made a real and splendid difference over the next few months. Very many thanks to everybody who leant a hand or gave the campaign a wee nudge. I'm in your debt.

7 July 2014

The SNP's commercial travellers...

A bad man came to my office. *sniffle* He's a politician. We have different views on the burning constitutional issue of the day.  He is a true believer, I have my doubts. He remonstrated with me, tried to persuade me that my fears are misplaced and my anxieties mistaken. He underscored the importance of our industry for the country - emphasised what he saw as the opportunities of independence as well as the risks - lobbied, canvassed my concerns, tried to answer my questions. I remained unpersuaded. I found myself gripped by new anxieties. The bad man's party remains in political office, and will do so until at least 2016. Their rule may go on and on for some time beyond that.

If I make my view public, wont I be biffing the ruling party's fundamental political aspirations squarely in the snotterbox? Oh dear. But once the present constitutional debate is passed, we might need the help and good will of the bad man and his fellow travellers to harry the chancellor on tax hikes for our business, or to press our case in parliament about the inefficiencies of the regulatory set up. Won't I have made an enemy and find my cries for help falling on deaf ears? If I had the chance, wouldn't I wreak vengeance against those who had spurned and embattled me? The bad man trundled out of my office, a threatening vision in heavy gauge tweed, his bright Yes badge cutting through me like a shard of ice. I sat in the darkness and thought about the great oppressive fastness of St Andrew's House. I trembled.

There is a ridiculous jury rigged story in today's papers, suggesting that business are coming under "direct pressure" from the Scottish Government to keep their gobs shut about independence. Unionist hacks have for months been pushing the - fantastical and disturbing - innuendo that the tyrannical Scottish Government, incipient totalitarians to a man, have been "silencing" critics and stoking a culture of fear and recrimination against those with doubts about independence. Today's reports have a carnival atmosphere. The Telegraph and the Express can barely contain their glee as they brandish what they clearly conceive of as the "smoking gun", substantiating their long-standing fantasies of victimhood.
 
Because business anxieties about the implications of "separation" is the one thing we never hear in this debate. Anyone promoting a pro-union message has to claw and tear their way into the media to be heard. The airwar is characterised by the brutal domination of independence-inclined messaging and news agendas. Thuggee separatist columnists have annexed comment pages, marginalising douce no-voting writers. The chief censor in Bute House ensured that the interventions of President Obama, and the voiceless J K Rowling, were muted and went unreported in the media. All reporting in this country is reduced to an echo-chamber of bland SNP press releases and proto-fascist imagery of wholesome, apple-cheeked children, shoogling saltires. Or. Um. Precisely not that.

Your nostrils can't help twitching at the scent of burning martyr diffusing through this. All of today's reports draw on comments made by Gavin Hewitt, a former chief executive of the Scotch Whisky Association, who told Channel 4 Despatches that "he or senior members of his staff had met Angus Robertson, the SNP’s Westminster leader and campaign director for the referendum, on at least six occasions over the past two years." Given the importance of the whisky industry for Scotland, and the extent to which its interests fall within reserved areas which concern the SNP Westminster leader, six meetings in twenty four months hardly seems extravagant. And what canny pro-independence politician would not try to persuade pivotal figures in pivotal national industries of their view?

You might as well argue that the activists out chapping doors are applying illegitimate "direct pressure" on voters to support their cause. Lobbying is not "intimidation" and it is a cheap spinner's trick to pretend otherwise. But what about the meat of the story - the allegation that Angus Robertson and the other SNP commercial travellers made "retribution threats" to businesses making negative comments about independence in public? What precisely were the contents of these "threats"? This is the critical question, but if today's coverage is anything to go by, the fretful businesses can't recall and do not allege any specific menaces they were subjected to. All they've got is anxiety, innuendo, and a hostile interpretation of entirely reasonable behaviour by Nationalist politicians. At its highest, the former head of the Scottish Whisky Association claims that:

There was a genuine fear that in fact if we were seen to scupper, by coming out publicly against independence, there would be retribution down the track.”

So that's it? No specific threats, but just a sincerely held concern that you might imperil your business's future interests by irritating the SNP government of the day? Just as, for example, a company might worry about the implications of denting the UK government's political aspirations by coming out strongly against one of their policies? As smoking guns go, the unionist press must have hoped for something sootier. Do we endorse the principle of guilt by projection now? If I sincerely entertain a fear that you're going to pinch my car, however baselessly, are you somehow responsible for my bad nerves?

There is a world of difference between (1) the allegation that politicians have made specific threats of retribution to business down the line is you dissent from their views, and (2) general industry anxieties about the potential implications of pissing off the powers that be. The first would - rightly - be regarded as an outrageous exercise in political pressure, the latter is just good, cautious business sense. In their coverage, the Telegraph and others shamelessly conflate the one with the other, chopping up Hewitt's comments to smear the bad man of the piece - Angus Robertson - as the SNP's bullying factotum in chief. 

On the basis of today's reports, there is no evidence whatever that Angus Robertson, or any of the SNP ministerial team fingered here, have made any "retribution threats" . And why would they? What media-savvy political operator, lobbying for their position with a potentially hostile industry, would resort to threats and menaces, knowing that all the corporate heid neep need do is pick up the phone to the Scotsman to tell the world? To suggest that this amounts to "implicit threats" is to convict the Scottish Government of being in office while holding a view some businesses disagree with. Elements of the No campaign seem disturbingly determined to see themselves as victims of oppression in this campaign. Today's hysterical story, and its manipulative reporting, shows just how far this ridiculous fantasy now extends.

5 July 2014

Regulating the Protestant mardi gras...

A few years back, the National Theatre of Scotland staged a show examining sectarianism and Glasgow's Orange traditions. Several of the folk involved in putting the piece together hailed from furth of the city - some English. The piece incorporated musical elements familiar to anyone who has ever lived in earshot of a parade - a burst of the Sash, the wheeze of an accordion, a drum's rattle and the shrill telling of the flute. Participants in the production had to be sternly admonished not to whistle, hum or sing these catchy ditties in public, however firmly their notes had lodged in the actors' skulls. The locals could only get the wrong impression, and heaven knows what bother you might find yourself unwittingly embroiled in. 

The Orange goons are out in force today. My local Rangers' pub currently rejoices beneath a Union flag and the fluttering red hand of Ulster. Some assiduous drinker has spattered every surface going with "Naw Thanks" stickers. Alas, I missed the local parades, but I'm sure the waddling tabards of the Greater Easterhouse Truth Defenders and their loyalist brethren had a splendid day of it at their Protestant mardi gras*, holding up the traffic and standing up for our covenanted race against the Roman antichrist. If twitter is anything to go by, many of this year's walkers made their own contribution to the independence debate, swag-bellied bowlers brandishing anti-independence messages: what would King Billy do?

But as usual, I got to wondering about the legalities of all this. Orangemen are as free as anyone else to make their contribution to this campaign, and quite right too. But they are also subject to the same rules as the rest of us on referendum campaigning and spending. The Grand Orange Lodge of Scotland recently registered as a permitted participant with the Electoral Commission. This entitles them, under the 2013 Act, to spend anything up to £150,000 on referendum expenses between now and polling day in September. The legislation defines a number of activities and forms of expenditure as referendum expenses.  As permitted participants, the Lodge will have to report to the Electoral Commission on their outgoings, but they are also liable to prosecution if they exceed their permitted spending total. 

Expenses are engaged if they are incurred "otherwise in connection with promoting or procuring any particular outcome in the referendum." They extend to advertising of any nature, whatever the medium used - presumably catching the production costs for the anti-independence signage brandished today. Paragraph 11(1)(8) of Schedule 4 of the Act extends this to:

"Rallies and other events, including public meetings (but not annual or other party conferences) organised so as to obtain publicity in connection with a referendum campaign or for other purposes connected with a referendum campaign. (Expenses in respect of such events include costs incurred in connection with the attendance of persons at such events, the hire of premises for the purposes of such events or the provision of goods, services or facilities at them.)"

That seems pretty clearly to extend to today's marches. If the Lodge was required to contribute towards the costs of administering their marches, in police time, that'd bust the bank, but they don't. But you've got to wonder about the Lodge's other spending associated with today's celebrations which might fall within the referendum regulations. Are folk bussed in at the Lodge's expense? Or are individuals engaged in a common plan with the permitted participant to do so? And have any of the loyal brotherhood thought to read the 2013 Act to find out? 

Under the legislation, it is illegal for permitted participants to incur referendum spending without the permission of the "responsible person" on the Electoral Commission's books. If the local orange tribe invest in a spiffy new sets of referendum-specific banners and flags, have they the nous to inform their grand wizard back in HQ so they don't get into bother with the Electoral Commission? If they don't, their luckless official is potentially liable to a £5,000 fine. But seeing some of the amateurish advertising run up today on twitter, you've got to wonder.

When I was on Newsnicht, I argued that one of the challenges of the referendum legislation is that it snares individuals and organisations who won't be in the habit of picking up and interpreting tricky pieces of law, or even dreaming that their activities are regulated by them. After all, what does an eeny-weeny Naw referendum banner matter, when you're bringing it to a loyalist march which you've been attending, year in, year out, for the last decade? I imagine few of the folk trundling through Scotland today, bowler-hatted and tabarded, will have given any of this the slightest thought. Edward Hyde, the Lodge's responsible person, will just have to hope that his clementine-coloured fellow travellers haven't dumped him in it. There is also the small matter of the Public Order Act of 1936, which provides that:

"... any person who in any public place or at any public meeting wears uniform signifying his association with any political organisation or with the promotion of any political object shall be guilty of an offence."

That law must now be interpreted and applied in the light of the European Convention on Human Rights. But they look an awful lot like uniforms to me...

*Michael Greenwell.

2 July 2014

#Indyref Prison Blues

Go to jail. Go directly to jail. Do not pass the polling station. Do not collect your voting papers.

That's the Court of Session's message to prisoners this afternoon, rejecting an appeal challenging Holyrood's decision to exclude prisoners from the independence referendum franchise. Lawyers for the petitioners have shown considerable creativity in putting together their case, running arguments based on the European Convention on Human Rights, European Union law - and the curious idea that our right to vote is fundamentally protected under the common law of the realm, whatever may or may not be set down in election statutes. 

Lord Glennie accepted this last claim in his decision at first instance, but managed to leap free of its implications by holding that your fundamental rights didn't extend to referendums, leaving the old lags wanting a say in September without a vote. That decision was inevitably going to be the subject of an appeal to the Inner House of the Court of Session. And after today's decision from Lady Paton, Lord President Gill and Lord Menzies, a further appeal to the UK Supreme Court looks inevitable.

For my part, the reasoning in today's Inner House decision is disappointingly sparse on some of the key issues raised by the appeal, particularly on human rights grounds. The Scottish senior judiciary has come in for some flak in the past for its failure to engage seriously with fundamental rights arguments. Professional anxieties about this lay behind the sturdy defence which maintaining the jurisdiction of the UK Supreme Court found amongst many practitioners. 

(It should also represent a cautionary tale for those who think a straightforward solution to Scottish political problems after independence is a vast constitution, with a dizzy array of social and economic rights, protected by strong judicial review in the American mould. If the history of public law litigation in Scotland since 1998 is anything to go by, the Court of Session seems singularly uninterested in assuming this radical role, and can be expected to adopt a conservative and deferential approach to the interpretation of any constitutional rights). 

Under Article 3 of Protocol 1 the European Convention, your right to vote is protected.

"The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

Under the Scotland Act, if Holyrood legislates in violation of your fundamental rights, it exceeds its powers and its laws are liable to be struck down in court. As I have written here in the past, if you examine the jurisprudence of the European Court, the prisoners' legal challenge never looked particularly promising. Strasbourg has, on several occasions - and recently - held that A3P1 of the Convention doesn't extend to referendums, or to presidential elections, but only to elections to the legislature. No protection, no prisoner votes. It was on the basis of this clear line of decisions, and a reluctance to innovate without Strasbourg's nod, that the Inner House reached its decision on the ECHR limb of the argument today.

Yet to my knowledge, Strasbourg has never decided on a disenfranchisement case involving fundamental questions of self-determination. And let's face it, the independence referendum is not like other referendums. It involves a fundamental decision about the lasting future government of the state. It isn't a poll-count about introducing a congestion charge, or a plebiscite on the privatisation of local water authorities. In an essential sense, it engages the choice of a legislature, and broader principles of popular democracy. 

Should we be ruled by Westminster from London and in devolved matters by the Scottish Parliament, or should all of these decisions be made by the distinctive democratic institutions of an independent state? If we are giving 16 and 17 year olds the vote on the basis that the future of their nation is engaged by this poll, doesn't the same go for the 18 year old fine defaulter, jailed for a couple of weeks, or a twenty year old sneak-thief serving a six-month term?

It is at least arguable that the #indyref is a "choice of legislature" question, though contending that it is an "election" may seem a bit trickier. On the other hand, Strasbourg has recognised, time and again, that Convention concepts must be interpreted "autonomously" from domestic law. National law may have a definition of a "home", for example, but your right to privacy and a home life under Article 8 can and must be interpreted independently of those domestic definitions, having regard to the basic principles the ECHR is established to protect. 

While we traditionally think of an election as being a choice about political representation, in principle, I don't see why we have to adopt such a narrow, formalistic approach. As the Court itself has recognised - to significant controversy - in Hirst v the United Kingdom, "the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion."
Moreover, the European Court has repeatedly emphasised (1) that the Convention is a "living instrument" and must be interpreted in the light of present day conditions and (2) that the rights it protects must be construed so as to make them "practical and effective" in scope, rather than "theoretical and illusory." What are the implications of this? Firstly, it means that the Court's decisions aren't set in stone and it is willing, for good reasons, to depart from established precedents. And secondly, it means that Convention rights should be interpreted without excessive formalism, construed with a view to promoting the fundamental purposes of your rights.

There is room for a nuanced exploration of these issues in considering the scope of prisoners' rights to vote in the independence referendum. Curiously, this "choice of legislature" argument, rooted in the sui generis character of a referendum on self-determination, was backgrounded in Aidan O'Neill QC's extensive submissions at first instance. He seems, however, to have recovered the theme and put the argument to the Inner House of the Court of Session more forcefully -- which essentially ignored it in today's decision. The petitioners argued:

[8] ... that there was no clear and constant body of  Strasbourg jurisprudence against the principle that A3P1 applied to referenda, particularly a referendum of the nature of the Scottish independence referendum. Secondly, the ECtHR in Strasbourg would undoubtedly seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that article 25 of the ICCPR was habile to include participation in referenda.
Thus the ECtHR, if construing A3P1 in circumstances such as the present, would extend it to referenda, particularly in view of the nature of the Scottish independence referendum, which arose from a legal obligation, focused on the breaking-up of an existing state, and was sufficiently similar to parliamentary elections in that it involved “the choice of the legislature.” Support for the petitioners’ contention could be found in the fact that the UK Supreme Court had shown a willingness to go further than existing Strasbourg jurisprudence where the particular facts and circumstances had not been before the Strasbourg court.

The Court's failure to address these arguments in any thoroughgoing way today suggest this case is ripe for further appeal to London, and another round of argument before the Justices of the UK Supreme Court. On balance, the Inner House's decision about the scope of ECHR rights is probably the right one on the law as it stands. Politically, my own preference is for prisoner voting rights to be vindicated through democratic rather than judicial institutions. But I'd hope and expect these trickier arguments, about the practical and effective protection of democratic rights, and the distinctive character of a referendum on self-determination, to be explored more carefully in that forum than they were in the Court of Session's decision on prisoner voting today.