The Scottish Parliament has started giving legislative effect to the Edinburgh Agreement that was signed in October 2012. The first measure to be brought before the Parliament earlier this week was the Scottish Independence Referendum (Franchise) Bill. It is a fairly short Bill, both in length and time: once enacted it will be automatically repealed on 1 January 2015 (the day by which a referendum must be held being 31 December 2014: Scotland Act 1998, sch.5, para.5A). The content of the Bill is now largely uncontroversial. The Edinburgh Agreement committed the Scottish Government to bring forward legislation to create a franchise for the referendum (para.4) and it was left to the Scottish Government to consult on extending the franchise to 16 and 17 year-olds and, if so minded, to legislate to enfranchise such individuals (para.5). The Bill now does that. Clause 2 sets out four conditions to be eligible to vote in the referendum: (i) the person is over the age of 16; (ii) the person is registered in the appropriate register; (iii) the person is not subject to any legal incapacity other than age; and (iv) the person is either a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union (the latter being defined in Clause 12 of the Bill).
Much of the Bill is then concerned with creating a register of young voters. To be eligible to vote in the referendum a person must be on either the register of local government electors for any area in Scotland (cl.2(1)(b)(i)) or on the register of young voters (cl.2(1)(b)(ii)). The former register is already maintained under section 9(1)(b) of the Representation of the People Act 1983 (“the 1983 Act”). The latter is created by the Bill. It must be maintained by each registration officer for his area (cl.4) and it cannot be published (cl.9). Schedule 1 then applies, with suitable amendments, various statutory provisions to the new register. The Bill also confers a general power on the Scottish Ministers to make “such supplementary, incidental or consequential provision as they consider appropriate” to give full effect to any provision of the Bill (cl.11). At first blush that appears to confer fairly wide-ranging powers to the Scottish Ministers with such order being subject to the affirmative procedure in the Scottish Parliament.
All of that is important to the functioning of the referendum and to securing the Scottish Government’s stated aim to enfranchise 16 and 17 year-olds. When reading the Bill, however, the provision that caught my eye was clause 3. That provides: “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.” That looks very like a blanket ban on prisoners voting in the referendum. When I turned to the Explanatory Notes that accompany the Bill, at para.9, the Scottish Government state: “Section 3 provides that convicted prisoners who are detained in a penal institution are debarred from voting in an independence referendum. Prisoners held on remand who have not been convicted will be able to vote, although they will need to do so using a postal or proxy vote. This is identical to provision made, in relation to parliamentary and local government elections, by section 3 of the 1983 Act. It has been included in the Bill because the UK Parliament is considering proposals to alter section 3 of the 1983 Act and the Scottish Government would not wish any alteration to apply for the purposes of an independence referendum.” And the Policy Memorandum accompanying the Bill confirms this was a conscious choice (para.13): “The ECHR ruling (and human rights case law) does not relate 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.”
As is now well-known, section 3(1) of the 1983 Act is incompatible with Article 3, Protocol 1 (“A3P1” to use the same now-common shorthand for its sister provision ‘A1P1’) of the ECHR, it cannot be read in such a way as to make it compatible and a declaration of incompatibility has been made (Smith v Scott 2007 SC 345, and numerous subsequent cases as more fully discussed by Colm O’Cinneide in his post on this blog on 4 June 2012 and Jeff King on 18 May 2011). The Westminster Parliament has thus far failed to amend the offending provision (beyond asking a committee to consider the options) and the domestic courts now recognise that it is outwith their power to push the matter further (Chester v Secretary of State for Justice  EWCA Civ 1439 at  (Laws LJ)).
A3P1 provides: “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 opinion of the people in the choice of the legislature.” Clause 3 of the Bill must be compatible with A3P1 to be within the competence of the Scottish Parliament (s.29(2) of the Scotland Act 1998 (“SA”)). The key to A3P1 is usually seen to lie in its closing words: “…in the choice of the legislature”. At the time of the 1975 referendum on continued membership of the EEC a challenge was brought by a prisoner then serving a prison sentence. The Referendum Act 1975 defined the franchise by reference to those eligible to vote in parliamentary elections (s.1(3)), thus the disenfranchisement of prisoners contained in section 4 of the Representation of the People Act 1969 applied (that provision is in substantively the same terms as the current ban in s.3 of the 1983 Act). An application was made to the Commission claiming an infringement of, inter alia, A3P1 (X v United Kingdom, Application No.7096/75). The Commission ruled the application was inadmissible: “the obligations of the High Contracting Parties under [A3P1] are limited to the field of elections concerning the choice of the legislature. The British Referendum on EEC membership was not an election concerning the choice of the legislature: It was of a purely consultative character and there was no legal obligation to organise such a referendum.” Thus the EEC referendum of 1975 did not engage A3P1. The same conclusion was reached when a challenge was brought against Austria in relation to its referendum on accession to the European Union (Bader v Austria (1996) 22 EHRR CD213).
It appears, therefore, that the blanket disenfranchisement of prisoners for the independence referendum is within the competence of the Scottish Parliament because the referendum does not engage A3P1. That produces a bizarre result: a person has a fundamental human right to participate in the election of the Scottish Parliament but has no equivalent right to participate in a referendum on the possible independence of Scotland. That conclusion appears to invite challenge. And despite the language of A3P1, the matter does not appear as clear-cut as the Scottish Government may hope. According to its preamble, the rights enshrined within the ECHR are “are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend”. Elections are a “characteristic principle of democracy” (Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para.48) but as the United Kingdom is evolving referendums are becoming an increasingly prominent and important part of our democracy (e.g. the European Union Act 2011, the Localism Act 2011 (invoked for the first time only last week), the 2011 referendum on the voting system for Westminster and the promise of an in/out referendum on EU membership). In other words, they too are becoming characteristic of our democracy. In the same case (at para.51) the Court recognised that A3P1 had evolved since being adopted. In Scoppola v Italy (2013) 56 EHRR 19 the Grand Chamber confirmed (at para.82) that “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 and universal suffrage has become the basic principle.” There is no reason why that same presumption should not apply to a referendum. In Zdanoka v Latvia, when considering how A3P1 could be restricted, the Grand Chamber explained (at para.115(c)): “In examining compliance with Art.3 of Protocol No.1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.” Elsewhere in its jurisprudence the Court has recognised that Article 10 includes protections calling for the dissolution of the state (Incal v Turkey (2000) 29 EHRR 449) and Article 11 includes protection for political parties to advocate the same result through non-violent means (United Communist Party of Turkey and other v Turkey (1998) 26 EHRR 121).
It would be odd, to say the least, if the ECHR could be held to secure the right to promote the dissolution of a state through non-violent means but not the right to participate in a referendum to achieve that goal. Such a conclusion is not readily reconcilable with the desire to secure “an effective political democracy” and could be characterised as an arbitrary measure, lacking proportionality that interferes with the free expression of the opinion of the people (to borrow the language of the Grand Chamber in Zdanoka). Thus taking the ECHR as a whole, if it is to secure its fundamental aims, there appears to be a strong case for saying the Court should revisit the decisions in X v United Kingdom and Bader v Austria and allow A3P1 to continue its evolution and protect the right to participate in a referendum such as that to be held in Scotland in October 2014.
If the Court were to take that approach matters would then become very interesting for the Scottish Government. If clause 3 of the Bill is incompatible with the ECHR then the provision is “not law” (s.29 SA). That differs from the position that currently exists in the United Kingdom in relation to elections: although s.3 of the 1983 Act is incompatible with A3P1, it remains in force. Assuming none of the law officers refer clause 3 to the Supreme Court prior to Royal Assent (s.33 SA), and there appear to be strong political reasons to believe that to be a safe assumption, then any challenge would be by way of judicial review. There is currently no “leap-frog” appeal direct from the Outer House of the Court of Session (where any such challenge would necessarily begin) to the Supreme Court, only to the Inner House (sch.6, para.7 SA). Only the law officers could refer a challenge direct to the Supreme Court (sch.6, para.33 SA). One would expect such a reference to be necessary if any challenge is to be determined prior to the referendum taking place. But if, applying the Ullah principle, the Supreme Court consider that it is not for them to make such a change to the interpretation of the ECHR then a challenge would be destine for Strasbourg and pre-referendum (or pre-repeal (cf. cl.14)) determination of the issue would be unlikely.
Leaving aside the competence of the provision, and considering the merits of the policy, the reasons why blanket disenfranchisement of prisoners is unacceptable in elections apply with equal, if not more, force to a referendum. The competing arguments are best captured by Laws LJ in Chester:
“ Opponents of this view would say, with some force, that it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process. It has to be remembered (though I doubt if it would be put this way in the course of political debate) that the vote of the stupid, dishonest, or malicious elector is worth as much as anyone else’s.
 But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.”
Referendums are held on questions that are said to be so important that the elected representative should not take the decision without consulting the people. Whether A3P1 applies to referendums or not, if it is accepted (and I recognise that it is not currently accepted by almost all politicians) that some prisoners should have a vote in elections, at least that same group of prisoners should be entitled to vote in a referendum. It would be absurd if a certain group of prisoners were enfranchised so as to elect a legislature but not to vote in a referendum on a question which the legislature sought the views of the electorate. From the Explanatory Notes and Policy Memorandum it appears the Scottish Government sought to consciously avoid that very parity.
It is unfortunate that the Scottish Government seek to continue the blanket disenfranchisement of prisoners in relation to the referendum vote. But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation. It is not in anybody’s interests to see courts involved in the run-up to the vote in October 2014 yet clause 3, as currently drafted, appears to take that very risk.
Paul Reid is an Advocate with Ampersand Stable
and a part-time tutor of Public Law at the University of Edinburgh
Suggested citation: P. Reid, ’Independence, the referendum, the franchise and prisoners: stormy waters ahead?’ , UK Const. L. Blog (13th March 2013) (available at http://ukconstitutionallaw.org).