12 May 2013

Sturgeon's Scotland: no "progressive beacon".

Next Tuesday, Holyrood will debate the first stage of the Scottish Government's Bill governing who will be able to vote in the independence referendum. As regular visitors may recall, when it was first published, I was particularly exercised by section three of the draft legislation, which proposes to prohibit Scottish prisoners from voting in the 2014 poll. 

The Referendum Committee's adviser, Professor Stephen Tierney of the University of Edinburgh, produced this brief report on the compatibility of disenfranchising prisoners in the independence referendum with the European Convention on Human Rights. Although airing potential caveats, like the Law Society of Scotland (and yours truly), Tierney concludes that any challenge to this disenfranchisement under Article 3 of Protocol 1 to the European Convention is unlikely to be successful.  

But that isn't the end of the story. Whether or not this proposal is legal, is it right? Is it really in keeping with the best spirit of human rights law, and emblematic of the sort of progressive political values which, we are assured, an independent Scotland will enshrine? When Nicola Sturgeon gave evidence to the Committee on the 28th of March, Green MSP Patrick Harvie questioned her about both the legality and politics of the Scottish Government's proposals, making the reasonable point that:

"Simply saying that there is no legal requirement does not mean that prisoners cannot vote. Does the Deputy First Minister acknowledge that an argument can at least be made that prisoners voting could be seen as part of a rehabilitation process, that there is a moral case in favour of it and that, even if an argument can be made for maintaining a degree of a ban on prisoners voting, that should be for the courts to decide on?"

Nicola largely refused to engage with why the Scottish Government has adopted this position.  Blandly invoking the status quo, Sturgeon (implausibly) denied that the Franchise Bill won't deprive anybody of any rights, as convicted prisoners haven't been able to vote in other elections or referendums anyway.
Tavish Scott: For clarification, are you objecting to the proposal [to grant prisoner the vote] on moral grounds rather than legal grounds?
Nicola Sturgeon: My objection is on the basis that the current situation is that people who commit crimes and are sent to jail do not get to vote. I do not believe that a good case has been made for changing that situation. If people want to vote in the referendum and to ensure that they do not lose the right to vote by being sent to jail, there seems to me to be a pretty simple way of ensuring that that is the case. I would not characterise my position as a moral or legal one—I think that the legal position is absolutely clear. I would characterise it as a practical view on my part and not anything else.

The party's rhetoric around 16 and 17 year olds voting is thrown into sharp relief.  For the young, considerations of practicality and deference to be afforded to status quo of British electoral law are to be dispensed with. For prisoners, the self-same practical considerations and rules of the old dispensation, depriving them of the vote, are taken to be sovereign.  Even if you agree as a matter of principle that convicted prisoners should be disenfranchised, Nicola's emaciated justification for this policy is not terrifically convincing. 

In the Referendum Bill Committee's stage 1 report, published last week, the SNP, Labour and Tory majority of the Committee (excepting the dissenting Tavish Scott and Patrick Harvie), predictably endorsed the Scottish Government's approach to disenfranchising prisoners, rejecting Harvie's proposed amendment to the effect that:

"While noting the evidence received that there is a low chance of a successful legal challenge to the bar on priso ners voting in the referendum, the Committee takes the view that there is a strong argument in principle that the franchise for the referendum should apply the same human rights standards as the ECHR requires for elections to a legislature. The Committee notes that the Scottish Government has suggested, in Scotland's Future: from the Referendum to Independence and a Written Constitution, that human rights should be embedded in Scotland‘s constitution, and does not consider section 3 of the Bill to be in keeping with the spirit of that aspiration.

The Committee seeks clarity from the Scottish Government on the reason in principle why the franchise for the referendum should differ from the franchise for elections, in the event that the UK Parliament brings the electoral franchise into compliance with the ECHR. 

The Committee is persuaded of the view that the referendum offers an opportunity to demonstrate a strong human rights ethos, by allowing prisoners serving sentences of less than six months to vote."

For what it is worth, I'd be more generous than Patrick and Tavish.  The right to vote ought to be considered a fundamental aspect of citizenship (albeit one whose universality is subject to a range of qualifications and exceptions on grounds of age, mental capacity, and practical details around registration and so on). I cannot see why prison walls should be able to exclude that right, but it is this, and this alone, which the current policy achieves.

Proposals to liberalise our system and to enfranchise prisoners are classically met by an outraged catalogue of villainy and offenders against human decency: Why should murders, paedophiles and rapists get the vote? Yet, under the current dispensation, large numbers of murders, paedophiles and rapists will find their voting rights restored to them - once they've left the prison gates at the end of their sentences, or when released on licence, as all but the most dangerous prisoners will be, in time.  Meanwhile, the policy ensures that all of the minor villains serving even very short spells in jail cannot contribute to our episodic exercises in democracy, outrage ebbs, and childish public feeling is duly assuaged.

I can understand the cynical political calculation undergirding this move by the Scottish Government. On the evidence, the SNP leadership's hostility to prisoners voting may even be sincere. To have done anything else than ape the British policy of disenfranchisement would have been like shoogling a box of irate frogs and prying off the lid, inviting damning tabloid headlines during in a period in which Nationalists will have a bellyful of hostile coverage. As Jamie Maxwell commented a few months ago, however, this is yet more dispiriting evidence of conservatism from the SNP in particular, and from Scottish politicians in general. 

On this issue at least, Sturgeon's vision of Scotland the "progressive beacon" casts a wan, watery light.


  1. Haven't civil societies moved on from this question? I would argue that the 'Right to Vote' is less of a right and more of a civic duty. If it is a civic duty of all citizens to vote then it changes the question entirely. One must come up with a compelling reason to exclude anyone from voting and I would submit that being in jail is insufficient grounds for exclusion.

    1. Michael,

      An interesting point of democratic theory, though not one really explored in the parliamentary debate. Who knows? Maybe some likely character will address it in the chamber on Tuesday...

  2. My feelings on this aren't enormously strong, but I must admit that I struggle to see it as any sort of dreadful outrage against human rights. If you're not prepared to obey the laws of a society, what business do you have in determining who makes them?

    I haven't been aware for the 40-odd years of my life of any great groundswell of opinion demanding the vote for prisoners, and I must confess myself perplexed as to why one's suddenly arisen now, not to mention why anyone would specifically expect the *SNP* to enact it when it would so obviously be political suicide.

    1. RevStu,

      I do understand that position, and I dare say several more folk hold it than agree with me. As I tried to gesture to in the piece, I can also see why the SNP leadership - even if some of them were relaxed about granting some or all prisoners the vote - decided not to tread on this particular unexploded mine. If I'd been advising them behind the scenes, I couldn't swear that I wouldn't have suggested it either, out of venal calculation.

  3. "Even if you agree as a matter of principle that convicted prisoners should be disenfranchised, Nicola's emaciated justification for this policy is not terrifically convincing."

    Hmmm. I think she just about gets away with it, since there is nothing a 16 year old can do to prevent themselves being under 18 on the day of the referendum, whereas a criminal could merely have avoided committing the crime that put them in jail. At least, I suspect that's how much of the electorate would see it.

    The media, on the other hand, would simply see it as the SNP needing to bribe criminals to win independence, or something silly like that. I'm not a fan of basing political decisions purely on the expected media fallout, but it's harder to condemn in some cases than in others.

    Quite simply, there is no moral justification for preventing 16 year olds getting the vote, however there can certainly be a case made for preventing prisoners voting. Whether it's correct or not is a different matter, but if I was in jail, I'd probably consider incarceration being a bigger infringement of my human rights than being prevented from voting.

    Judge Daniel rules "Not Proven".

    1. Doug,

      An interesting question; I've not seen Scottish polling on prisoner voting rights. I'd assume that it would mirror what we see in the rest of the United Kingdom, and attachment to the idea that prisoners should continue to be disenfranchised. I didn't touch on it in the piece, but there is obviously a democratic argument to be made here too. As one commenter on twitter noted, the "problem" isn't so much the SNP's progressive credentials, but the lack of progressive sentiment amongst the populace at large. That's the argument, anyway.