No prisoner votes in Scottish independence referendum – Andrew Tickell

12 March 2013 by

voting copyToday, 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 It is envisaged that this young voters roll will not be published.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 Holyroodcould 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, Article 3 of Protocol 1 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 Austriadecision 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.

This post by Andrew Tickell first appeared on the Lallands Peat Worrier Blog and is reproduced here with permission and thanks.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

3 comments


  1. Andrew says:

    Oh damn it.

    After “Scotland” add “to vote”.

  2. Andrew says:

    At least the ridiculous and racist proposal to allow those of “Scottish origin” living outside Scotland has died the death.

  3. Gavin Steele says:

    Human rights aside, wouldn’t it have been nice if the Scottish Parliament – if only to cock a snook at Westminster – had chosen to do it differently, more inclusively? The message would have been: “we are more humane up here – and, unlike you, we choose to abide by universal human rights principles, even when we don’t have to”. If part of the point of independence is to get away from the “Little Englander” tendencies of right-wing Tories, this would have been a great way to start…

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: