Lag's law: no prisoner votes in the independence referendum...

Today, the Scottish Government have introduced the "paving Bill" to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.

Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.  

I was more interested in section 3 of the Scottish Independence Referendum (Franchise) Bill, which provides that "a convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person". Those on remand, awaiting trial, will accordingly be able to vote, either by proxy, or by post. In the Policy Memorandum which accompanies the draft proposals, Ministers make two points:

"While the franchise at the referendum is a matter for the Scottish Parliament to determine, the franchise in Scotland (as throughout the UK) is a matter for the UK Parliament.  The UK Government announced in November 2012 that it would ask a committee of parliamentarians to consider a range of options set out by the Government in response to successive rulings by the European Court of Human Rights that the UK's ban on prisoners voting in elections to state legislatures breaches the European Convention on Human Rights.  The Committee will report later in 2013. The ECHR ruling (and human rights case law) does not related to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014."

Despite the digression about the UK government, in essence, this means that Holyrood could but won't enfranchise prisoners, if it passes this Bill.  My question is, can they get away with it? In a post from last October, Love and Garbage thought not.  The Policy Memorandum doesn't provide any evidence to support its claim that referendums can be distinguished from elections, when it comes to prisoners' voting rights. Like all devolved legislatures, Holyrood is charged in its founding documents to observe the rights protected by the European Convention. Unlike Westminster, the Scottish Parliament can't assert sovereignty and shrug off the European Court's decision in Hirst v. the United Kingdom, which held that our blanket ban on prisoners voting was incompatible with the Convention (but didn't hold that all prisoners in all circumstances should be granted the right to vote).

Prima facie, the Scottish Ministers seem on solid ground. If we look at the section of the European Convention which recent prisoner voting rights litigation has been founded upon, it does seem to limit the ambit of the protected right to elections, as distinct from referendums. Article 3 of Protocol 1 to the Convention reads as follows:

"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."

The language used seems dispositive. On its face, A3P1 only applies to elections - not to referendums. The explicit reference to the "choice of the legislature" seems under underscore the point. If you dip into the European Court's legal archive, you'll find this understanding bourne out in the jurisprudence. See, for example, Bader v Austria decision of 1996 which held that A3P1 protections didn't extend to referendums, and more recently Niedzwiedz v Poland in 2008, concerning a complaint that the applicant had been deprived of a vote in Poland's referendum on EU accession. The Court explicitly held that:

"... the obligations imposed on the Contracting States by Article 3 of Protocol 1 are limited to "the choice of the legislature" and do not apply to the election of a Head of State or to referendums". 

That seems plain enough. Litigious prisoners with ardent pro- or anti-independence views will not, in all probability, have much luck in persuading Scottish Courts that the proposed disenfranchisement violates their fundamental rights, but we might feel a wrinkle here. In Hirst No. 2, the Grand Chamber of the European Court said (at para 59):

"... 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".

In 2014, people in Scotland will decide collectively on whether or not to become a sovereign state. It is difficult to conceive of any more fundamental exercise of democracy than that.  While the European Court has held in the past that the language of A3P1 excludes referendums, is there not at least an argument to be made that a referendum on self-determination is not as other referendums, and accordingly, the principles of enfranchisement articulated in Hirst ought to apply, that prisoners ought to have a say?

A formalistic construction of the Convention clearly supports the Scottish Government position, and legally, I'd expect the proposed limits to the independence franchise to be upheld as compatible with the European Convention. One has to wonder, however, whether depriving those in jail of any say in their country's future abides by the spirit, if not the letter, of the European Court's judgment in Hirst, or represents "effective and meaningful democracy governed by the rule of law" where "universal suffrage" is a "basic principle" worth upholding.  Even for the 7,500 or so folk who are currently bidies-in with Her Majesty.