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.


  1. What worries me about this is it disenfranchises classes of people who have become criminalised or whose circumstances in life, specifically poverty, make them more likely to be in jail. One person pays a fine and gets to vote; another goes to jail because they cannot pay the fine and is unable to vote. Disenfranchisement thereby becomes a part of the punishment. In particular, this sets a dangerous precedent for political "criminals" such as, in Scotland, would in my book include conscientious Trident protestors.

    1. Alastair,

      Parking the legalities, and focussing on the politics, I sympathise with your view. Prisoner votes is one of these issues where my empathy fails me. I just can't understand the visceral hostility some folk - perhaps even the majority - feel about it.

    2. This comment has been removed by the author.

    3. I put it down to deep psychological unawareness, to projection onto those whose path in life has caused them to stumble before we ourselves might have hit the same stone. For example, how many of us who drive have never exceeded a speed limit? Any of us, if we're honest? Prisons contain people who have exceeded speed limits and in so doing, killed somebody. Morally speaking the rest of us are as guilty as they are but we deny our guilt and project it onto those, the convicted, who we can scapegoat and thus self-righteously absolve our own sins. But I'm sorry - I'm a theologian - I would speak like that, wouldn't I?

    4. I put it down to deep psychological unawareness, to projection onto those whose path in life has caused them to stumble before we ourselves might have hit the same stone.

      I never have murdered someone, and don't know anyone who has. Likewise, I know plenty from severely disadvantged/impoverished backgrounds who've managed to avoid petty crime or the not so petty crime which would receive a prison sentence.

      Far from exuding empathy towards the disadvantaged, your moralizing gobbledygook is viewing them as moral idiots.


  2. 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.

    You could just as easily argue that freedom is similarly protected and that no-one should be held against their will... see where I'm going?


    1. Therein lying the logical problem. It was curious that Lord Glennie accepted the idea at first instance, to be honest.

  3. I think that it's devaluing democracy to give all sorts of unsuitable people the vote (Queen Victoria face), but I agree very much with the line about rights being vindicated through democratic rather than judicial institutions. When those campaigning for the Vote for prisoners or 16 year olds don't haul their arguments through the parliament in the first place, then they're fighting for democracy by undermining it.

    1. Was speaking at a recent human rights conference in Glasgow on this theme - after a couple of days of orthodox arguments that the solution to an independent Scotland's ills are - at least partly - incorporating any and every international human right known to man into a written constitution, which we could all trip down to the Court of Session to enforce.

      There is a certain irony that a key plank of some kind of Yes rhetoric is a desire not to be ruled by an imperious and entitled white male elite, educated in private institutions and attending ancient universities. With that in mind, it tickles me that anyone would prefer political questions about the scope of social and economic rights resolved by Court of Session judges, which still overwhelmingly embody the class which independence, for some, is a reaction against...

    2. Indeed. I can understand why a constitution is always very tempting - I would love to see the right to freedom of speech, or to abortion, frozen constitutionally forevermore. But it is a mistake to think that you can simply end politics or that you can win the debate forever with a constitution. The judges who enforce the constitution will usually be interpreting it in favour of the elite and entitled. America has constitutionally enjoyed freedom of speech since 1789, but not if you had lived through lynching terror or McCarthyism or countless other constitutionally-erroneous examples.

    3. And Congress enjoys the exclusive right to declare war. Even my undergraduates laughed in knowing cynicism at that one. Underneath those points is a methodologically important one - what is the best guarantee of liberty (or social democracy, or whatever), constitutional entrenchment or fostering an active citizenship with the self-confidence to fight for gains, and gain new victories by political means? The either/or probably isn't helpful, they aren't necessarily mutually exclusive, but I encounter quite a lot of resistance to the question from folk who're committed to big constitutional thinking. But litigating our politics does have resource implications - which in turn, have implications for who can and who cannot afford to participate. These aren't nice, academic issues.

    4. And of course human rights are enshrined and protected in the Chinese constitution -


      'China's top legislature, the National People's Congress (NPC), kicked start a landmark Constitutional amendment which is expected to enshrine human rights protection for the first time Monday afternoon.

      "The State respects and protects human rights," says the new expression to be added to Article 33 of Chapter Two of the existing Constitution, which has undergone three overhauls since its promulgation in 1982. '

      As history demonstrates, there is nothing to worry about as long as it is all written down.