Next Tuesday, Holyrood will debate the first stage of the Scottish Government's Bill governing who will be able to vote in the independence referendum. As regular visitors may recall, when it was first published, I was particularly exercised by section three of the draft legislation, which proposes to prohibit Scottish prisoners from voting in the 2014 poll.
The Referendum Committee's adviser, Professor Stephen Tierney of the University of Edinburgh, produced this brief report on the compatibility of disenfranchising prisoners in the independence referendum with the European Convention on Human Rights. Although airing potential caveats, like the Law Society of Scotland (and yours truly), Tierney concludes that any challenge to this disenfranchisement under Article 3 of Protocol 1 to the European Convention is unlikely to be successful.
But that isn't the end of the story. Whether or not this proposal is legal, is it right? Is it really in keeping with the best spirit of human rights law, and emblematic of the sort of progressive political values which, we are assured, an independent Scotland will enshrine? When Nicola Sturgeon gave evidence to the Committee on the 28th of March, Green MSP Patrick Harvie questioned her about both the legality and politics of the Scottish Government's proposals, making the reasonable point that:
"Simply saying that there is no legal requirement does not mean that prisoners cannot vote. Does the Deputy First Minister acknowledge that an argument can at least be made that prisoners voting could be seen as part of a rehabilitation process, that there is a moral case in favour of it and that, even if an argument can be made for maintaining a degree of a ban on prisoners voting, that should be for the courts to decide on?"
Nicola largely refused to engage with why the Scottish Government has adopted this position. Blandly invoking the status quo, Sturgeon (implausibly) denied that the Franchise Bill won't deprive anybody of any rights, as convicted prisoners haven't been able to vote in other elections or referendums anyway.
Nicola Sturgeon: My objection is on the basis that the current situation is that people who commit crimes and are sent to jail do not get to vote. I do not believe that a good case has been made for changing that situation. If people want to vote in the referendum and to ensure that they do not lose the right to vote by being sent to jail, there seems to me to be a pretty simple way of ensuring that that is the case. I would not characterise my position as a moral or legal one—I think that the legal position is absolutely clear. I would characterise it as a practical view on my part and not anything else.
The party's rhetoric around 16 and 17 year olds voting is thrown into sharp relief. For the young, considerations of practicality and deference to be afforded to status quo of British electoral law are to be dispensed with. For prisoners, the self-same practical considerations and rules of the old dispensation, depriving them of the vote, are taken to be sovereign. Even if you agree as a matter of principle that convicted prisoners should be disenfranchised, Nicola's emaciated justification for this policy is not terrifically convincing.
In the Referendum Bill Committee's stage 1 report, published last week, the SNP, Labour and Tory majority of the Committee (excepting the dissenting Tavish Scott and Patrick Harvie), predictably endorsed the Scottish Government's approach to disenfranchising prisoners, rejecting Harvie's proposed amendment to the effect that:
"While noting the evidence received that there is a low chance of a successful legal challenge to the bar on priso ners voting in the referendum, the Committee takes the view that there is a strong argument in principle that the franchise for the referendum should apply the same human rights standards as the ECHR requires for elections to a legislature. The Committee notes that the Scottish Government has suggested, in Scotland's Future: from the Referendum to Independence and a Written Constitution, that human rights should be embedded in Scotland‘s constitution, and does not consider section 3 of the Bill to be in keeping with the spirit of that aspiration.
The Committee seeks clarity from the Scottish Government on the reason in principle why the franchise for the referendum should differ from the franchise for elections, in the event that the UK Parliament brings the electoral franchise into compliance with the ECHR.
The Committee is persuaded of the view that the referendum offers an opportunity to demonstrate a strong human rights ethos, by allowing prisoners serving sentences of less than six months to vote."
For what it is worth, I'd be more generous than Patrick and Tavish. The right to vote ought to be considered a fundamental aspect of citizenship (albeit one whose universality is subject to a range of qualifications and exceptions on grounds of age, mental capacity, and practical details around registration and so on). I cannot see why prison walls should be able to exclude that right, but it is this, and this alone, which the current policy achieves.
Proposals to liberalise our system and to enfranchise prisoners are classically met by an outraged catalogue of villainy and offenders against human decency: Why should murders, paedophiles and rapists get the vote? Yet, under the current dispensation, large numbers of murders, paedophiles and rapists will find their voting rights restored to them - once they've left the prison gates at the end of their sentences, or when released on licence, as all but the most dangerous prisoners will be, in time. Meanwhile, the policy ensures that all of the minor villains serving even very short spells in jail cannot contribute to our episodic exercises in democracy, outrage ebbs, and childish public feeling is duly assuaged.
I can understand the cynical political calculation undergirding this move by the Scottish Government. On the evidence, the SNP leadership's hostility to prisoners voting may even be sincere. To have done anything else than ape the British policy of disenfranchisement would have been like shoogling a box of irate frogs and prying off the lid, inviting damning tabloid headlines during in a period in which Nationalists will have a bellyful of hostile coverage. As Jamie Maxwell commented a few months ago, however, this is yet more dispiriting evidence of conservatism from the SNP in particular, and from Scottish politicians in general.
On this issue at least, Sturgeon's vision of Scotland the "progressive beacon" casts a wan, watery light.