25 July 2014

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.

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