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.
