No #indyref votes for prisoners, Court of Session holds

A snowball's chance in hell. That was my assessment of the chances of prisoners persuading any Scottish court that they were entitled to vote in the independence referendum.  Or more precisely, that to exclude them wholesale from the franchise, as the Scottish Government and Parliament determined to do, was unlawful.

But to court three prisoners went, seeking judicial review of the legislation. This morning in the Court of Session, Lord Glennie handed down his judgment in the case.  As predicted, for all the ingenuity of their counsel, the Addiewell Three didn't win out. 

Counsel for the prisoners argued that the legislation was objectionable on three grounds: ECHR rights, fundamental common law rights, and EU law.  Under the Scotland Act, Holyrood and Scottish Ministers are explicitly bound over to observe both European legal regimes. Any Scottish legislation which clashes with fundamental rights or Union law is no law at all: a powerful tool in the litigant's pocket.

Firstly, citing ECHR rights, Aidan O'Neill argued that the legislation violated Article 10 (freedom of expression) and Article 3 of the first Protocol to the Convention, which provides that:

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

In the now-notorious Hirst case, the Strasbourg court cited this provision to hold that the UK's blanket exclusion of all prisoners from the franchise (save for untried folk, detained on remand) violated the Convention. As I suggested they might a few months ago, the prisoners argued that there was really no principled reason why we should distinguish between elections to the legislature and referendums. And such an important referendum, too, determining the fate of the nation. As Lord Glennie notes:

"The difficulty for the petitioner, however, is that it has been held consistently both by the Commission and by the European Court of Human Rights that A3P1 applies to voting in elections for the legislature and has no application to voting in a referendum or, for that matter, in an election to elect a president or head of state. There is a long line of cases all to this effect."

How to wriggle off this hook? Here, Aidan O'Neill tried to persude the court strike out more ambitiously, following a scattering of ambiguous signs from the Strasbourg jurisprudence that the European Court might reverse the consistent course of its case-law, pulling referendums within the compass of Article 3 of Protocol 1.  This was a pretty tenuous line of argument at best, and Lord Glennie wasn't buying it. The freedom of expression argument proved equally shoogly. ECHR snowball, duly melted.

Secondly, the prisoners citing "fundamental" or "constitutional" rights, arguing that the right to vote is now part of the Common law. Pulling in a range of judicial decisions from the rest of the democratic world, focussing on Canadian and South African cases, the prisoners cited the resounding language of Justice Albie Sachs to the effect that the universality of the franchise must be a cardinal principle of democratic governance:

"Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and ineffective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood.

Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement."

In a somewhat densely-reasoned series of paragraphs, Lord Glennie held that "though I accept the existence of a fundamental or constitutional right to vote in general terms, I have come to the conclusion that that right does not extend to voting in a referendum." So no joy for the petitioners under the common law either.

Lastly, Aidan O'Neill squeezed in an EU law challenge.  And it'll be familiar to students of the independence debate. Expect the media to may much hay with it.  Lord Glennie summarised the applicants' argument on this score:

[84] The petitioners here contend that EU law is engaged because the outcome of the Independence Referendum will affect Scotland's membership of the EU and the status of Scottish nationals as citizens of the EU. The Referendum is therefore not simply a domestic matter. It affects the EU rights of Scottish nationals entitled to vote in the Referendum in two ways: first, because an independent Scotland would not, for a while at least, be a member of the EU, and therefore individuals resident in Scotland would not have access to EU rights for the period when Scotland was not a member state; and secondly, because Scottish citizens, not being citizens of a member state, for a while at least, would for that period cease to be EU citizens.

The points are separate but obviously closely related. The first of those points, namely that Scotland would cease for a while at least to be a member state of the European Union is predicated on the proposition that Scotland as an independent state would have to apply for membership from outside the EU, and unless and until she became a member she would remain outside the EU. The second point is based on an interpretation of article 20 of the Treaty on the Functioning of the European Union ("TFEU"). That article establishes citizenship of the Union and provides that "every person holding the nationality of a Member State shall be a citizen of the Union".

It goes on to say that citizenship of the Union is additional to and does not replace national citizenship. The argument is that upon the Scotland attaining independence and becoming an independent state outside the EU and applying to get in, Scots who had previously been nationals of the United Kingdom but had become Scottish nationals would no longer be nationals of a Member State and, as a result, would lose their EU citizenship. The argument assumes that those becoming Scottish nationals would be required to give up their United Kingdom nationality."

Describing the complex issues of fact and law involved in Scotland's relationship with the EU after a Yes vote, Lord Glennie observed that:

"It is apparent from the Crawford and Boyle Opinion that in legal terms there is no simple answer, either in law or in fact. They correctly describe the legal situation as sui generis, pointing out that the various EU Treaties do not specifically cover the point. But the difficulty goes further than that. As is apparent from the terms of their Opinion, and as is perhaps obvious to anyone with even a passing acquaintance with the arguments for and against, the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics.

The court is not in a position to know fully what political considerations will be brought to bear on the issue, and with what leverage. Accordingly, to ask the court to decide the question whether upon achieving independence Scotland would cease for a time to be a member of the EU, with consequences for its nationals in terms of their citizenship of the EU, would be to ask the court to predict the outcome of robust and complex negotiations. That is a question largely of fact. It is not a task which the court is equipped." 

With reference to the EU authorities, rejecting the challenge, the Court held that:

"... the Scottish Parliament is not exercising competence in the sphere of nationality. It is not purporting to make a decision about EU membership or EU citizenship. The process which it is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship. The point may arise in the future where decisions are taken which might affect those questions. But that time has not yet come."

So the third limb of the prisoners' case failed too. A comprehensive judgment from Lord Glennie, if not one that will satisfy the three residents of HMP Addiewell, who will remain bystanders as their nation collectively determines its constitutional future. Politically, this is an outcome to be lamented. Legally, it is the right decision.  But one, I fancy, which may have a good chance of being appealled to the Court of Session's Inner House for further analysis.  A setback, certainly, but the game's no bogey - yet.