RIPA: Police Scotland's whoops apocalypse

On the 25th of March 2015, a new code of practice on the use of Regulation of Investigatory Powers Act came into force. RIPA, as it tends to be known, sets out the procedures and authorisations which public authorities - including Police Scotland - must employ if they want to intercept telecommunications, tap phones, or gain access to what is called communications data. Who owns this mobile phone? What numbers has it been calling? What telephone networks has the device being connecting to? What movements has its owner been making? This can be invaluable information in the detection of crime and terrorism, but it also throws up challenges when it comes to journalists' sources. 

The European Court on Human Rights regards the protection of journalists' sources as a critical aspect of Article 10's protection of free expression in a democratic society. To dig up journalists' sources, public authorities must show an overriding public interest. But imagine you are a curious police force, which wants to know where a troublesome hack is getting his information from. What do you do? The temptation is obvious. Identify the hack's mobile phone number. Dredge his communications data to find out who he has been blethering to. Trace the numbers back, and you may identify his sources, without anything so awkward as interrogating the journalist in question. Indeed, the hack whose sources have been traced in this scenario almost certainly has no idea what the hypothetical police force has been up to.

In an effort to control the behaviour of police forces, the new March 2015 code made serious changes. The amended code is a fairly long document -- but the sections on the additional protection which would be extended to journalists' sources seems crystal clear to me. It is worth underlining too: draft versions of this new code was laid before parliament at the beginning of March, and the issue of accessing journalists' communications data was repeatedly highlighted in the media. The changes were sprung upon nobody, including Police Scotland. So what does the new code say? And what did it change? It provided that in future:

Where an application is intended to determine the source of journalistic information, there must therefore be an overriding requirement in the public interest, and the guidance at paragraphs 3.78–3.24 should be followed.

Paragraph 3.78 summarises this - I should have thought - absolutely clearly. Here's what it says:

3.78. In the specific case of an application for communications data, which is made in order to identify a journalist’s source, and until such time as there is specific legislation to provide judicial authorisation for such applications ... law enforcement agencies in Scotland must use the appropriate legislation or common law powers to ensure judicial authorisation for communications data applications to determine journalistic sources. 

Got that? Comprehensible? This isn't a technical, jargon-laden text. It isn't a knotty section of a long and complex statute. It sets out the rule perfectly clearly when it comes to accessing data on a journalist's sources. Mystifyingly, Police Scotland conspired to "misinterpret" this new, crystal clear provision. Officers did what you might expect: secured access to several sources of communications data without seeking judicial authorisation of any kind. In November 2015, the Interception of Communications Commissioner concluded that Police Scotland had "recklessly" failed to follow the Code. "Reckless", that is, rather than "wilful". Police officers hadn't deliberately ignored the requirements of the new Code. They'd been negligent.

The official line from senior police officers is that the senior responsible officer regrettably "misinterpreted" the new rules. And today, Assistant Chief Constable Ruaraidh Nicolson appeared before Holyrood's Justice Committee in what seems likely to prove an abortive attempt to allay MSPs' fears about Police Scotland's behaviour here. It wasn't a particularly assured performance by the Assistant Chief, but for me, the critical question which remains outstanding is this. You've read the new code. You've seen its short compass. I bet you've understood it too. It makes it plain that judicial authorisation is necessary, if a police force - any police force - proposes to hunt down communications data on a journalist's sources. Scotland even warrants a special mention in paragraph 3.78 of the Code, for criven's sake.

How is it, therefore, that a senior and experienced officer in Police Scotland failed properly to understand this simple-simple new requirement? A "mistake", they say. A "misinterpretation". But I'm at loss as to how one could "misinterpret" this straightfoward text and conclude that judicial consent was, in fact, not necessary. It stretches credulity. After the Assistant Chief Constable's appearance before parliament today, I remain at a loss. Senior officers offer contrition, but their explanations remain garbled and unclear. And the stooshie rumbles on.

Land reform: through the looking glass

An awkward admission: by far the biggest hurdle to "radical" land reform in Scotland is the European Convention on Human Rights.

In terms of traditional political loyalties, we're through the looking glass here. Tweedy landlords, conservative estate owners and land agents may vote Tory to back the established order -- but if Gove is permitted to strip Convention rights out of Scots law, those self-same property owners would find themselves entirely at the mercy of a democratic majority in Holyrood hell bent on a substantial rejigging of the territorial map.

They may not give a ha'penny toss for many of the freedoms the ECHR enshrines, but their right to property -- well, that's a different story. Without it, they would quickly discover that their vaunted rights at common law aren't all they're cracked up to be. They'd find Magna Carta mum. People inclined to defend your Convention rights, by contrast, find themselves stymied again and again by Article 1 Protocol 1, and the right to property it enshrines. This right to property isn't absolute. States enjoy a broad margin of appreciation within which they can raise taxes, regulate property and so on -- but the right has real teeth. Fans of cognitive dissonance, eat your heart out. The basic text of the Convention reads as follows:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

For many land reformers, our history of a strikingly unequal distribution of landed property is a nightmare from which they are trying to awaken. Our situation recalls the well-known joke about the tourist in Ireland, seeking directions. "Well if I were you," a local replies, "I wouldn't start from here." But ownership is, inevitably, backwards looking. Without a revolution, we don't begin at year zero, with a clean slate. It isn't a matter of hitting reset and redrawing the maps. 

History also teaches us that the landed interest have the wealth and willingness to go to law where they believe their rights have been violated -- and win.  The first Act of the Scottish Parliament to be struck down by the courts on human rights grounds concerned a challenge by a landowner to the rights of one of his tenant farmers.  The owner won; the farmer killed himself shortly afterwards. These strictures aren't to be sniffed at and they aren't all that easy to get around in a systematic way. 

Although the text of the Convention doesn't expressly require the state to pay compensation to people whose property it expropriates, it has been interpreted in that way by the European Court. For example, in James v. The United Kingdom, judges made clear that the state must give fair compensation to those whose property is taken or transferred:

"... under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on [property owners]."

Compulsory purchases can be justified in the general interest -- but kicking the lairds out of their castles and estates without stumping up cash is doomed from an ECHR point of view. As a result, finding a mechanism which (a) effectively redistributes and rebalances land ownership while (b) working within the current owners' right to property ain't easy. 

In the Land Reform (Scotland) Bill, we find the Scottish Government's latest attempt to do so. You'll find the most controversial provisions in Part 5 of the Bill, which sets out a revived right to buy.  That right will only be exercisable by community bodies or a third party which they nominate -- and with consent of Scottish Ministers. Ministers must not consent to the transfer of the land unless all four of the following criteria are met. And the criteria to be met are pretty ferocious.

1. The transfer of land is likely to further the achievement of sustainable development in relation to the land, 
2. The transfer of land is in the public interest, 
3. The transfer of land - (i) is likely to result in significant benefit to the relevant community  and (ii) is the only practicable way of achieving that significant benefit, and 
4. Not granting consent to the transfer of land is likely to result in significant harm to that community.

The third and fourth conditions are particularly onerous. Perhaps reflecting this, if would-be purchasers fail to secure consent, Scottish ministers will foot the bill for their application. If the community body does get the nod, however, the Scottish government will appoint a land valuer, who will independently assess the market value of the land, giving the parties the opportunity to contribute to the deliberations on fair compensation. The government will foot the bill for these valuations too, and if the owners or purchasers are disgruntled, they'll be able to go to the lands tribunal and air their dissatisfaction. Once the decision has been taken, owners will not be allowed to foil the process with a quick fire sale or sneaky transfer to their preferred purchaser. 

The land lobby have predictably attacked these criteria as vague and undefined, crying Mugabe, land grabs and bloody murder. They are nothing of the sort. The language of the legislation is necessarily impressionistic, allowing ministers to apply broad principles to different situations and applications from across the country. But surely the landowners are - also characteristically - protesting too much here. A thick vein of (understandable) caution runs through these proposals. As politicians and property owners shadow box, enjoying the mutual recrimination and batting at phantoms, a property lawyer friend summarised the reality more pithily.

"This Bill is not as radical as claimed by Scottish Government (given the thresholds for use of power to sell). Not as awful as claimed by landowners (for similar reasons). Basically, making something like this ECHR proof means they can't do something revolutionary."

There's a lesson somewhere in here for Tory enthusiasts of human rights repeal. When you're through the looking glass, you should be careful what you wish for. 

Roll of Honour

It is a short, technical-seeming judgment, and like many brief, technical-seeming judgments, it is more significant than it appears. In Donnelly and Walsh v. Procurator Fiscal, Edinburgh, Lord Carloway and his colleagues had to decode a decision by two of his fellow judges, to grant leave to appeal against a conviction in Edinburgh Sheriff Court. So much, so banal. 

Where matters get more interesting, however, is that the appellants, William Donnelly and Martin Walsh, were convicted by the sheriff of having committed offensive behaviour at football under the Offensive Behaviour and Threatening Communications (Scotland) Act 2012.  The sheriff found that Walsh and Donnolly had belted out "Roll of Honour" at a match between Hibs and Celtic at Easter Road in October 2013, concluding that this behaviour was caught by one of the Act's broad prohibitions, and was likely to incite public disorder.

Donnelly and Walsh are attempting to challenge their convictions under Article 7 of the European Convention on Human rights, which provides that:

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 7 has a bit of history in Scottish criminal jurisprudence. The old catch all common law offence of breach of the peace was gradually worn down and clarified by the courts, anxious that the vagueness of the offence would not satisfy European human rights criteria.  In Smith v. Donnelly, still the decisive word on the definition of breach in Scots law, Lord Coulsfield noted that "the Convention requires that any law creating a criminal offence must meet a certain standard of clarity and comprehensibility." It is not enough that the convictions of Walsh and Donnelly can be hung on section 1 of the 2012 Act: in order to satisfy Article 7, the criminal offences created "must be clearly defined in the law." In the language of the Strasbourg court:

"... this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable." S.W. v. The United Kingdom [1995] para 35.

Do the offences created by the football legislation pass this test? In the particular circumstances of the case, was the applicants’ right to know, with sufficient clarity, of the nature of the crime in terms of Article 7, breached? I would be surprised if Walsh and Donnelly prevail here. The crimes set out in the 2012 Act are arguably at least as clear as Smith v. Donnelly's definition of the crime of breach of the peace as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community." But leave to appeal having been granted, the High Court will now have to embark on its first substantial review of the football legislation on human rights grounds since it was so hastily passed by Holyrood. One to watch.

Utter scumbags

The intellectual and political problems with the Tory indictment of the Human Rights Act, the European Convention and the Court of Human Rights are legion. The idea of "Europe's war on British justice", and of a meddling Strasbourg Court, is blown to bits by the data. The UK lost eight cases in the European Court last year. Chris Grayling and Theresa May argue that losing 0.48% of the cases lodged against you represents an illegitimate and hyperactive form of judicial activism. 

I believe that the European Court's jurisdiction represents a modest check on the overwhelming powers of the state to crush the life, liberty and privacy of the individual. It is this government's overreaction to the modesty of the European Convention's protections which makes it so contemptible. The Lord Chancellor's dismal suggestion that only the popular and the agreeable parts of our community should have their qualified rights protected spectacularly misses the point. 

I can accept, politically and philosophically, that there is a serious debate to be had about the desirability of entrenching fundamental rights in law, how far you go, and the extent to which we empower (in our tradition, an unelected and socially and professionally narrow) judiciary to take important political decisions in the absence of a participative democratic process. Reasonable people, to my mind, can reasonably differ on these questions. 

What I cannot accept, however, is the properly grotesque argument which this contemptible, reckless, immoral and intellectually bust Conservative Party is running to justify and explain its human rights plans. In Grayling's thumping rhetoric to the grinning faithful in Birmingham, you do not see a meaningful and serious-minded parliamentary deliberation on the contested understandings of human rights, but an abject and irresponsible failure to engage in any intellectual or morally credible way with fundamental rights ideas.

Can it be right - can it ever be right - to deliver anybody over into circumstances where we reasonable expect they will be tortured, subject to inhuman and degrading treatment or the flagrant denial of justice? According to David Cameron and his party, this should be an option, and Jehovah rot them, those "unelected Euro judges" in Strasbourg are holding up the rendering flights. The interfering so-and-sos. Electric batteries are running down in dank cells, unused, somewhere in the world. The state torturer's rope hangs idle. All because some piffling jurist from Luxembourg believes that it can't be right to deport anyone - even your worst enemy - into the hands of humanity's darkest and most inhumane functionaries. Britain deserves better. We must scrap the Act. 

This isn't a civil and anxious debate about the proper scope of privacy rights, or the right to liberty, but a tantrum, impervious to the facts. It's the work of a smug toddler standing triumphant over a fly he's malevolently depinioned. "Aren't I a clever boy?" he gloats. The moral compass of this Conservative Party is a forgotten aftermath of shards and broken glass, arms bent and buckled. Theresa May tells cheap jokes about cats, glowing with the glib self-image of being the new deputy in town, tough on crime, tough on some undifferentiated, disagreeable them, animated only by brisk and matronly common sense. I can't begin to describe the malevolence, tawdriness and irresponsibility of this attitude.

The brutal reality of the Tories' human rights rhetoric is not that it aims to repatriate the human rights debate, but to liberate the government from elementary principles of fairness, humanity, compassion and justice. What they are proposing isn't just politically disagreeable: it is monstrous. See no evil, hear no evil cannot be a principle of British justice. 

Nobody with any moral sensibility could make the case for deporting folk to places where there is a real risk they will be tortured. Nobody with an ounce of responsible humanity could promote it. But this government, this shallow bunch of irresponsible, gut-gripped eejits don't care. It breaks my heart and burns my blood.

After all, how can the trivial matter of connecting one of your fellow, sentient creatures up to a car battery compare to the overwhelming importance of attracting a few extra UKIP votes in the debatable lands of Essex and Kent? How can the soles of feet, beaten black and blue, measure up to the significance of being able to give a sleek and populist address to your fellow Conservatives at Conference, who cheer like dunderheads, more than drowning out the distant screams? Who gives a damn if some villainous foreigner with disagreeable views finds himself suspended from the ceiling, arms half wrenched from their sockets? 

This is Britain. We have the right to live in freedom from such persons. I'm sure you'll find it in Magna Carta somewhere. Why should we care that we've pitched them into this disaster? After all, it isn't our police, our secret services who are sodomising them with truncheons or connecting up their genitalia to car batteries. Lie back and think of England. Rejoice in the liberties of a freeborn Briton: you've earned them. You're not a gypsy, or a criminal, or someone whose views the central government finds disagreeable. Your right not to be tortured isn't trivial.

Congratulations, comrades. We've finally uncovered Britain's moral mission in the world: to lend a helping political hand to tyrants and torturers in Europe, and the great wild world beyond. To excuse their torture chambers and their mistreatments of their citizens, to align ourselves with the Belarusian tyranny, and the persecutors of Kurds, and the Roma. To embolden, in short, everything most ghastly about illiberal state apparatuses. All for the sake of getting a modest electoral edge over Nigel Farage.

 

These people disgust me. 

We cannot deliver people up to torturers' chains and hooks and shrug, unmoved, and say "it is nothing to me guv'" over the anguished cries of the people - the fellow creatures - we make their victims. Yet this is precisely what David Cameron and his allies now propose, for the sake of a sympathetic response from the eurosceptic tabloids. They chafe against the modest restraints of the European Convention, flinging every cheap jibe and intellectually lazy epithet at the judges of the European Court. They want the liberty to do wrong - horrible, horrible wrong - for the sake of a human rights fairytale and good headlines in the Express. Nothing better expresses the festering rot which gnaws at British politics.

These people are scumbags. Utter, utter scumbags.

Devolution: Grayling's human rights petard

Joy be. "So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values and as for Labour’s Human Rights Act? We will scrap it, once and for all." 

Earlier this week, the Tories put some flesh on the bare bones of Cameron's commitments in his conference speech, in a document entitled "Protecting human rights in the UK." The document's only reference to the implications of the wheeze for the devolved authorities in Northern Ireland, Wales and Scotland is the banal observation that:

"We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK."

English lawyers like Carl Gardner and Mark Elliot have already begun to put the logic of Chris Grayling's madcap scheme to the sword. To some extent submerged in all of this, however, are the implications for Scotland. And here it gets a wee bit complicated. Professor Aileen McHarg has a comprehensive blog on point up on the UK Human Rights blog which surveys the key issues. What follows is a more compressed account, given a more partisan topspin.

A couple of days back, David Maddox published a story on the Scotsman ("Scotland exempt from Tories' Human Rights axe"), which carried a remarkable, clearly edited and utterly incoherent quote from an unnamed Scotland Office spokesman, claiming

"... that human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]."

Cue a good deal of misplaced jubilation from folk, keen to see fundamental rights retained in Scots law. Regrettably, the comments attributed to the spokesman, and uncritically printed by Maddox, are credibility-dynamiting rot. They're abject drivel.

Firstly, the Scotland Act is Westminster legislation, and susceptible to amendment or repeal by MPs. To say something is "built into" the Act is neither here nor there. Secondly, the Human Rights Act is categorically not "written into" the Scotland Act. This is a common conflation, but an extremely problematic one. While you won't find human rights listed as a reserved matter in Schedule 5, the Human Rights Act itself appears as a protected enactment in Schedule 4. Short version: human rights are devolved, and Holyrood can pass laws concerning them, but the Scottish parliament is not allowed to repeal or to change the Human Rights Act as is.

As Aileen writes, Scotland is currently subject to two distinct human rights regimes.

The Scotland Act requires Holyrood legislation and Scottish ministers to comply with European Convention rights, but nothing more than that. If legislation or ministerial action violates your fundamental rights, you can traipse off to court and get the offending law or subordinate legislation struck down by the courts. The silence at the heart of the Tory human rights plans about what will become of these devolve protections and constraints is deafening. 

The octopoid Chis Grayling shows no awareness whatever about the devolved dimension, which extends not only to Scotland, but to Wales, and to the Northern Irish Assembly, where the incorporation of human rights formed a core plank of the Good Friday Agreement. All for the sake of a few extra votes in Essex, and the lawful authority to deport people where we reasonable expect them to be tortured, or to be subject to inhuman and degrading treatment, or the flagrant denial of justice.

So much for an ethical foreign policy. The declared aims of the Prime Minister, Theresa May, and the Lord Chancellor are nakedly monstrous and unjust. They make my blood boil. Alyn Smith was right before the referendum: there is bugger all we can do to prevent it within the Union. Not with a Tory government in the grip of a victim-fantasy and strung along by it own fairy tales.

By contrast, the Human Rights Act extends to all public authorities in Scotland. Schools, local government, NHS hospitals. If Westminster abolishes the Human Rights Act, Holyrood and the Scottish Government will remain bound over to observe Convention rights, but Glasgow City Council and the police will be liberated from their obligations to respect freedom of religion and conscience and the privacy and home life of everybody they encounter.

Cue another level of complexity: Sewel motions, or legislative consent motions. Here's where things get politically interesting. As we know, powers devolved are powers retained. Westminster retains the right in law to legislate for devolved matters. In practice, however, that right has been circumscribed by the convention that consent from Holyrood is necessary (a) where Westminster proposes to legislate in a devolved area (for example, the whole-UK civil partnerships legislation of 2004) or (b) where the UK parliament propose to change the scope of the Scottish Parliament's legislative competence (for example, the 2012 Scotland Act, which received the nod from the majority of MSPs).

Under the current convention, the proposed repeal of the Human Rights Act (insofar as it applies in Scotland) and the introduction of any British Bill of Rights proposing a different human rights protection mechanism requires legislative consent from Holyrood. Whichever way you slice it, the refusal of consent looks odds on, either to any Tory plans to (a) eliminate the ECHR provisions from the Scotland Act, or (b) to introduce any new, watered down British Bill of Rights. 

With a Nationalist administration in Edinburgh, these issues take on an additional piquancy. Much more attractive, you might well think, to adopt distinct, Scottish human rights legislation, extending to all public authorities subject to Holyrood's jurisdiction. This approach may be justified, not least, by some of the absurdities of the Bill Grayling has sketched in outline, drubbed by various legal commentators quoted above.

We might even consider folding additional rights into that Scottish legislation which are not to be found in the European Convention. The rights of children, perhaps. We can use our imaginations. As Professor McHarg notes, there is a distinct possibility of fragmentation and complexity here, as both reserved and devolved authorities operate in Scotland and both would be subject to different human rights regimes. On the other hand, let's not make the best the enemy of the good. If Cameron is returned to No. 10 with a majority, "Labour's Human Rights Act" - which was, it should be remembered, supported by newspapers like the Express when it was adopted - will be a dead letter. Far better for the Scottish Parliament to set a different example, however imperfectly.

But one thing's for sure: despite the blithe spirit of indifference animating the Lord Chancellor's fag packet proposals, the fuse has been cut and the taper set to it. The devolved politics of Human Rights Act repeal looks dead set to explode.

Two European Futures

There are many strands of contemporary UK policy which are, in their own ways, dismaying. One of the more underexposed in the independence debate is the frequently irrational spirit of anxiety gripping Westminster and Fleet Street about all things European. At times, it has shades of a persecution complex. Underlined by Douglas Carswell's defection to UKIP from the Tories last week, it has an obvious and ongoing European Union manifestation, but also touches on European human rights norms, and the jurisdiction of the European Court of Human Rights in Strasbourg. 

These issues cannot be tucked away behind a safe little firewall from the constitutional debate in Scotland, to be considered at a later date. The No campaign has made much of the risks and uncertainties of an independent Scotland's EU accession. They have focussed not only on timeline and terms of an independent Scotland joining the other 28 member states: they couldn't resist overplaying their hand, recklessly drawing attention to their own weakest spot. Against almost all of the evidence and reasonable commentary, for months, Better Together have been stirring up the idea that Scotland would be pitched out of the EU into the north Atlantic cold. The game, it seems, continues with reports of their activists dishonestly telling Polish voters that their families would be uprooted if Scotland votes Yes next week.  

But a moment's consideration will tell you that this is a political boomerang for the No campaign, bedevilled by its own rich superabundance of risks and uncertainties about the United Kingdom's continued participation in the European Union and its legal recognition of your basic civil and political rights. In a piece for the Journal today - "Damned lies and bogus statistics..." -  I take a look at the facts and figures, lies and fictions, which currently dominate the UK airwaves and David Cameron's cabinet, on Britain's participation in these modest international schemes to provide some human rights remedy, some modest protection for your privacy rights, your liberty, your right to be free of torture, and not to be exposed to flagrant injustice or inhuman and degrading treatment.

It is a grim reminder of how precisely we are supposed to be Better Together. It isn't the whole story, certainly, but it is an important, urgent part of the wider UK picture. Amid the tempest of dross, there have been some wonderfully sensitive and nuanced pieces of writing in recent days from those who intend to vote No, with Chris Deerin and Alex Massie standing out for me, and I imagine, for others. I don't share their convictions on the constitution, or sense of British identity, but you can admire the graciousness of the prose and the evident thoughtfulness undergirding it. David Cameron asked a choice audience today not to "break his heart." That the campaign must have an emotional dimension always seemed to me entirely proper.

But we can't let these compelling night thoughts on the union sunset distract us from the real bother which a No vote drags us into, unavoidably. If we vote against independence on the 18th of September, there is every possibility that Scotland is going to crash out of the ECHR, on the basis of a fairy tale. And to adapt Tam Dalyell, we find ourselves set, by the raging fever gripping UK politics, on a motorway, with fewer and fewer turnoffs and exits, to a future outside of the European Union, whatever Scots might think either way.

Tossed into the steaming cauldron of the House of Commons, it makes for a potent combination: a witch's brew of misplaced anxieties, madcap delusions of victimhood, and an imperviousness to pretty simple facts. With independence and continuing union, there are opportunities and risks, costs and benefits. If you are inclined to weigh the stability of the status quo against the uncertainties of independence, put aside that misconception now. If you value the judicial protection of your fundamental rights, if you think that the European Convention represents a small, embattled achievement rather than the cartoonish abomination which the inner circle of Cameron's cabinet see, Scotland's place in the Union looks like the riskier option by far.  All you need do is vote yes to dispel the fairy tale.

Read the full piece here.

Better Together's European boomerang

The line looked initially promising: would, could an independent Scotland get into the European Union? Would we find ourselves, shivering alone on the north Atlantic frontier, our nationals shipped back from France and Spain and the Netherlands, in exchange for boatloads of Germans and Belgians, as our free movement rights are extinguished with the Union? Would Scottish businesses, buying and selling in Europe, find their profits squeezed by new tariffs and trading barriers, banished beyond the common market?  

Risks and uncertainty, doubts and anxieties, Vote No. Just last week, Douglas Alexander incorporated the European threat into his patter for the plum spot on the nightly news. Unanswered questions, was his riff.  Across all sectors of its rhetoric, including that notorious referendum broadcast, the No campaign has discernibly ratchetted up a line I identified back in June, when it transmogrified into No Thanks. The nub of it:

The interest of Better Together's new slogan, for me, is that it implicitly recognises the attractions of independence. Jettisoning, or at least backgrounding, their attempt to persuade us that we're better together, the new motto recalls the closing speech of the defence lawyer, who suspects that his client is guilty, but who invokes the burden of proof to demand an acquittal. Sure, the character in the dock looks shifty, isn't entirely trustworthy, and you probably don't much like him, but the prosecution haven't proven their case. I know you want to send this guy down. I know you wont enjoy setting my client free. But look, members of the jury, the evidence just doesn't stack up. There are too many holes in the case. You can't take a decision this big with all of these questions outstanding. And that, ladies and gentlemen, is reasonable doubt.

Even if you find independence tempting, even if part of you wants to vote Yes, you cannot responsibly do so on the basis of the prospectus we've been given. The European scare fits neatly into this wider strategy. And even better for those arguing against independence, the Yes campaign and the Scottish Government are structurally incapable of resolving the uncertainties Better Together (sometimes) correctly identify. Politically, the secession of a part of an EU state is unprecedented. Legally, there's no mechanism written into the treaties to answer the case, and to put it beyond doubt how an independent Scotland would be treated. 

EU treaties aren't comprehensive texts, devoted to theorising about abstract possibilities: they keep the real world in view. If you ask a lawyer about Scotland's EU status after a Yes vote on the 18th of September, they can only tell you a fraction of the story. You have to hunt beyond the letter of law for answers. And as Professor Michael Keating notes in the Press and Journal  this week, forcing Scotland out of the European Union, only to readmit it, with all of the unnecessary turmoil and frustration and costs that that would impose on all 28 Member States, makes little sense for anyone. The accession process may have its challenges and its setbacks, it might take longer than anticipated to achieve full integration - but a smooth transition seems the only common sense option. Is this guaranteed? No, it isn't. But is it the most realistic outcome, based on all the evidence before us? You bet. 

The No campaign isn't really interested in whether independence in Europe is viable or not. It isn't interested in the nuance, complexity, or inevitable uncertainties which trouble all future hypotheticals. Their message is far simpler: risk, risk, risk: vote no. Demand the impossible, and when the impossible duly does not materialise, declare your opponent a shiftless, unconvincing sneak. Ask for unobtainable evidence, and crown yourself the victor when the man on trial can't produce it.

This is the politics of inertia, and it is potentially highly effective, contrasting the hazardous murk of independence against the solid, calculable characteristics of the status quo. The fatal problem with the No campaign trying to use European uncertainties in this way, however, is that it assumes our heads button up backwards. They assume we've not been paying attention.

Helpfully, the former Tory MP Douglas Carswell decided to take the opportunity today to remind us of the absolute peril in which Britain's relationships with the rest of Europe sit, by defecting to UKIP.  His reasons? Cameron's lack of credibility on EU negotiation. Remember, the Prime Minister's line is that he'll hie him to Brussels, to repatriate lost powers and restore British sovereignty by renegotiating the treaties. But which powers had he particularly in mind?

Er. None of that is tremendously clear, but from the patter of his senior colleagues, it seems Cameron wants to persuade States to compromise on essential and long-standing features of the common market, including the free movement of people within the European Union. As a number of the Prime Minister's critics have correctly identified, renegotiation is a slogan, not a policy. It is a paper tiger with which to fend off the eurosceptics at his back for a year or two, but no answer to the disastrous incoherence gnawing at Cameron's party. 

Carswell's departure today underlines the implausibility of the Prime Minister getting his Harold Wilson moment. The increasingly vocal and emboldened voices of euroscepticism in the Conservative Party won't be bought off by paper promises. They're interested in the brass tacks of European policy. They want fundamental repudiation of core principles of European Union law -- or they want us out. Waving a vague bit of paper won't placate them. Indeed, it is increasingly difficult to see Cameron producing anything to placate them.  And if Scotland remains within the Union after September, these problems are our problems too.

If renegotiation is candyfloss, we cannot ignore the realistic possibility that Britain will crash out of the European Union, allowing the Lord Chancellor and Home Secretary to pursue their cherished goal of repealing basic human rights statutes, pulling us out of the European Convention, and opening the door on transporting people to countries where we fully expect them to be tortured, subject to inhuman or degrading treatment, and the flagrant denial of justice. It is an absolutely dismal - and not wildly speculative - vista. 

Is it guaranteed, is Britain doomed to this course? Of course not. Politics has its shifts and eddies. It rarely moves in straight lines. Some mysterious, majestic intervention may drive back the tide. But the smart money says that the greatest risk to Scotland EU membership is continuing Union. If Better Together want to talk about risks to our membership of the European Union, that's grand. But I'm pretty sure that the European boomerang will come back to clatter them on the noggin. 

Let's talk about risks. Let's open up the hopping mad box of frogs which is the parliamentary Conservative Party, and treat their demands and declared ideology seriously. Yes or No, there are calculable risks and opportunities in Europe on both sides of the constitutional argument. But if Carswell's intervention today shows one thing, it is that Better Together's complacent discourse, which sets the uncertainties of independence against the securities of the status quo, has no credibility whatever.

Which is hereby pronounced for doom

The jig's up. Building on the head of steam which gathered behind them, plucking the case up from the Court of Session, yesterday the UK Supreme Court dismissed prisoners' last best hope of being able to vote in the independence referendum. 

The justices' detailed reasons will follow in due course, but it is plain enough that none of Aidan O'Neill QC's lines of argument - international law, common law, ECHR rights, European Union law - found any favour. Colour me unshocked. You won't have to update your referendum timetable. Election workers won't have to labour overtime to register a flood of postal votes from Barlinnie and Saughton.  David Cameron's stomach will be unsickened by the thought of "murderers, rapists and paedophiles" voting to save the Union.

Gerry Moynihan QC, for the Lord Advocate, ably dismantled some of the appellant's audacious leaps and bounds of reasoning. The simple fact is: the idea that there is a common law right to vote is profoundly shoogly in law and politically problematic. The history of the Reform Acts, and the gradual expansion in the franchise, is well known and has been driven by political, rather than judicial, decision-making - not in courts, but by parliament.  The idea that judges should conjure up a right from the ether, cut against history, slap a "common law" label on it, and overturn a legislative Act of an institution with "plenary powers" - it is a proposition which proved too rich for the Court of Session, and it is no surprise to find the London bench similarly queasy. Sovereign, it may not be, but Holyrood's decisions are not lightly for judges to tamper with. 

On the ECHR limb, all of the European Court of Human Rights' case-law weighs against the idea that the right to vote protected by Article 3 of Protocol 1 extends to referendums. The provision reads:

"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."

The Court has consistently held that the protections of this Article don't extend to referendums, or to presidential elections and the like. That - elementary - fact made the Convention rights case, that failing to extend the #indyref franchise to prisoners violated their ECHR rights, a very difficult one to make. Nor is this ancient jurisprudence: some of the examples are very recent. While it is true that the European Court has never been met with a self-determination referendum before - and there's an argument that a vote for independence represents a fundamental question of democratic governance which A3-P1 ought to protect and extend to those behind bars - this line of argument was always speculative. The bench yesterday morning didn't radiate sympathy for the proposition. 

Even the counsel for the two prisoners appeared to have given up on seriously pressing his EU law argument yesterday.  The short version of the argument seemed to be: if Scotland votes Yes, Theresa May has sorta said Scots will lose their British citizenship, thereby depriving them of European citizenship - and here's the mighty logical leap - thereby making the two prisoners' exclusion from the franchise a matter of EU law and subject to proportionality review.  One happy consequence of yesterday's decision is that perhaps we'll be relieved of the plaintive bleating of the James Wallaces of this life, and the other girning expatriates who can't vote in September's poll. Their entire hope, best I understood them, hung on this extremely tenuous line of legal argument. The Supreme Court's rapid demolition of the case yesterday puts pay to this nonsense for good.

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.

Articles of Disunion

Independence day. After months of negotiations, Scotland's formal ties with the UK have been unravelled. Compromises have been made on each side, but overall, both parties are as satisfied as they ever could be with the outcome. A new chapter opens on inter-governmental relationships in these islands, and a refounded, strengthened Scottish Parliament sits for the first time.  But wait one moment. What powers does this new legislature have? And what limits on its powers?

Under devolution, the Scottish Parliament is a creature of statute, created by the Scotland Act, its powers and liberties defined by Westminster. It may be a politically acceptable description to see independence as completing the work of devolution, giving Holyrood power over all of the matters currently reserved to London. But legally? That doesn't work at all.  Independence blows the Scottish devolution system to bits.

You need an interim constitutional platform to take its place. A fact recognised last week by Nicola Sturgeon, who announced that the Scottish Government are working on an temporary constitution, to apply until such time as a permanent constitution can be agreed, and establishing the process for formulating the more permanent fundamental law of the independent Scottish commonwealth. 

Cue some noises off. Isn't this a sinister development? Where does this leave the SNP's protestations that the drafting of the constitution should be participative? What mandate does the Scottish Government have to impose a constitution - even in the interim - on the Scottish people? To my mind, these objections rest on a couple of fundamental misunderstandings. Firstly, we need a provisional basic law to govern the interregnum. We can't do without one, and in some areas, we wouldn't want to.  Secondly, using a broadly participative process to adopt this basic law would be impractical and inappropriate.

For example, what becomes of your fundamental rights between independence day and "constitution day", whenever it falls? As it stands, Acts of the Scottish Parliament can be invalidated if they violate the rights protected by the European Convention on Human Rights, running from the right to be free from torture, to protections for your privacy and freedom of expression. But independence throws the status of the whole Scotland Act scheme into doubt.  If Holyrood were simply to succeed to Westminster's sovereignty north of the border, nothing would prevent the parliament - during the interim period - from ignoring your basic rights.

Similarly, if Scottish Ministers were simply to acquire the powers of their London counterparts before Scotland's permanent basic law was agreed, Alex Salmond would gain the Prime Minister's power unilaterally to declare war under the Royal Prerogative, without reference to parliament.  Politically, this is unlikely to be a goer. In practice, one might expect any Scottish premier to ask the legislature before commencing military action. There is no evidence that the First Minister has dark designs on Berwick, but it is hardly unthinkable that some international conflict involving NATO forces might arise before an impeccably participative process drafts and agrees Scotland's permanent constitution. What then? 

Should we mutely inherit some of the least attractive aspects of the UK constitution for - potentially - a number of years before subjecting them to proper forms of democratic accountability and control? I'd argue not.  An uncontroversial, sober, conservative interim written constitution is essential if these uncertainties and potentially pernicious inheritances are decisively to be avoided.

Ah, but why should the government of the day get to define which rights are fundamental even temporarily? Isn't that unsettling? In the longer run, certainly. And if it looked like the government of the day thought it would chance its arm, and renege on the commitment to drafting a new constitution, I'd join you on the barricades. As the SNP have rightly accepted from the get-go, the constitution does not belong to the governing party and should not be shaped exclusively by its preferences.  But a temporary text? That's a different barrel of herring.

The idea that you use a protracted, difficult and complex process of participation to draft the interim constitution fabulously misses the point.  What would be the point in the second process if the first produced a constitution warranting long-term protection? And what the devil do you do in the interim? To my mind, it would be a terrible idea to try to run the independence negotiations and the planned-for constitutional convention in parallel. 

Having these two conversations in tandem can only confuse, not least because some elements of the constitution will doubtless be informed by whatever deal is cut with the Westminster government. Nor should we assume that the timetables for the two processes will neatly tack onto one another. Far more sensible to adopt a functional, impermanent set of rules in the interim, deferring the wider constitutional debate until such time as you are able to lend it your full attention, without subjecting it to arbitrary deadlines generated entirely by the pressures attending negotiations with the rUK government.

Ah, but wouldn't any interim constitution represent a model, a precedent for the subsequent process - and isn't that unfair, prejudging the issue in precisely the way the Scottish Government committed not to? Isn't this just the SNP trying to smuggle in their own preferences under the guise of an impermanent document, laying down train-tracks which a more participative process can be expected to follow?  

That could be true -- but only up to a point. It remains to be seen to what extent Nicola's text will represent a significant departure from the status quo. There is an obvious tension between insisting that the constitution isn't a matter for the government to determine, while simultaneously attempting to rule the question of whether the Queen should be head of state entirely out of consideration. But thus far, Sturgeon's public remarks on the plans have been masterly exercises in cultivated vagueness. As I understand it, the interim text is still being drafted, and is subject to particularly limited circulation even within the Scottish Government.

The most conservative proposal one might envisage would be an interim constitution which enshrines a unicameral parliament, the monarch as the head of state, still subjecting Holyrood legislation to strong judicial review under the European Convention on Human Rights, and imposing statutory controls on the exercise of the royal prerogative by ministers. A beefed-up Scotland Act, if you like. There might be a temptation for the Scottish Government to include a wider range of their own preferences in this interim document. For example, in addition to ECHR rights, the SNP leadership have indicated that they'd argue for nuclear weapons to be banned, and additional social rights to be written into the permanent constitution, and protected.  

The inclusion of this sort of material in the holding text would be - in my view - wrong, both in principle and in terms of political strategy. We need an interim constitution, to hold parliament and ministers in check, and bring clarity to the distribution of powers among the institutions of the state. Anything else is a recipe for needless legal uncertainty, which is always the handmaiden of litigation. But if the interim text makes it clear that it is no higher law, and can be changed by the subsequent process? I can't see the issue.

Lastly, a word on the process.  Perhaps the most interesting aspect of the Sturgeon story was the confirmation that her draft Bill will "outline the participative and collaborative process by which Scotland, as an independent country, will prepare its permanent written constitution." This is where the waters get choppier. How should the new constitution be formed?

Should we, like the failed post-crash Icelandic constitution, elect individuals to a special drafting group to compose the document? Should we re-form a Calman Max group of "civic Scotland" bigwigs and worthies, the same old faces and organisations, facilitating submissions from the crowd? Might we, like the current Irish Constitutional Convention process, mingle ordinary punters randomly selected from the electoral roll with politicians? Alternatively, should we leave less to chance, and allow folk to put themselves forward for consideration? And who decides?

The White Paper didn't go in for specifics on how the Scottish Government hoped the new constitution should be drafted, beyond that they believe it "should be designed by the people of Scotland, for the people of Scotland," drawn up by an “open, participative and inclusive" process.  That fuzzy formulation covers a multitude of different ways in which the process could be said inclusively to engage the public. It seems this Bill will hope to solidify those ideas, and commit the government to a particular model, which will doubtless provoke its own controversy.  Interesting times in Scotland for the dismal constitutional obsessive. I'm in my element...

How many ECHR cases did Britain lose last year?

A new year, a new round of unelected-euro-judges-waging-war-on-British-justice watch.  

The European Court of Human Rights has had a relatively quiet start to 2014 in the pages of the UK press.  Somewhere, I'm sure, a Tory MP is trauchling away at the idea that the Court is systematically subverting our domestic judicial and parliamentary processes - with the bad grace of doing so as the same time as having a piffling Luxembourg jurist as its president - but the daily hate agenda seems to have shifted back from Strasbourg to Brussels. An understandable shift of emphasis, you might well think, given the approaching elections to the European parliament.

Sooner or later, however, the Court will produce an opinion which offends the blue-rosetted tribes of the House of Commons, and the europhobic victim fantasies will be dusted off and trotted out. Today, the Court has published its annual account of its work over the last year. Buried at the bottom of this substantial report is a niggling little statistic which everybody who hopes to understand the Court's real impact on Britain should have at their fingertips.  

For our illustrious Lord Chancellor and Home Secretary, every passing decision of the Court is yet more evidence of the institution's overreaching desire to subvert British democracy. Whatever the merits of a particular decision, and whatever the demerits of the legal regime being challenged, you can rely on the justice ministers of the current government to denounce it in shrill terms. 

If you are already predisposed to believe the underlying claim - that Europe is robbing us of our freedom to be beastly to beastly people - every passing precedent may appear just another casualty of "Europe's war on British justice". Doesn't it feel as if the European Court is always finding the UK in violation? Wasn't there that article just the other week about some disagreeable sod using human rights arguments to force the Home Office to give every con a weekly bath in asses' milk? This, as Phil observes over at A Very Public Sociologist, is stupid empiricism. We have to take a look at the wider picture. And that picture blows these delusions to bits.

So how many cases did Britain lose last year? Thousands? Hundreds? The Court certainly had the opportunity, taking decisions on 1,652 applications submitted against the UK during 2013. And did the malevolent band of Maltese and Andorran judges, as expected, glory in Britain's discomfort, substituting their own preferences for parliament's again and again?  Er. No. Not really.

During 2013, the Court found that the UK had violated Convention rights in just eight of these cases. If this tiny clutch of judgments represents war on British justice, I'd love to know what an acceptable number of adverse findings might be. This is two fewer adverse judgments than last year, representing an overall rate of defeat before the Court for the government of just 0.48% during 2013.   

Take a moment to take that in, and keep it in your pocket the next time a Conservative minister or parliamentarian or Express reading pub bore tries to convince you that the Court's judges are systematically undermining British democracy.  In 2013, as in 2012, this is a pitiful victim fantasy or a smokescreen: crabbit, feeble and entirely unjustified self-pity.

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.