The Hirst (No 2) v United Kingdom judgment has proven to be one of the most contentious of decisions of the European Court of Human Rights. Its subject matter, prisoner voting, has also served both to illustrate and to some extent to define the relationship between that Court and our domestic legal and constitutional order. Reconciling judgments that declare one or more provisions of primary legislation to have been incompatible with our obligations as a High Contracting party requires Parliament to legislate to remedy the breach. Under the principle of the legislative supremacy of Parliament, no Court, domestic or international, can unilaterally override an Act of Parliament.

Despite their concerted efforts to demand that the “blanket” ban on the right to vote for prisoners otherwise than those on remand be overturned, the Strasbourg Court has ultimately proved unable to “compel” the United Kingdom to comply. This remains the case despite it having issued a pilot judgment in late 2010 (Greens and MT v United Kingdom) that threatened to recommence proceedings for some 2000 applicants against the UK, potentially giving rise to costly damages in just satisfaction. If any progress is to be made in the law being changed, so as not to constitute a “disproportionate” interference with Article 3 Protocol 1 of the Convention (A3P1), it must come through the active consent and initiative of the Houses of Commons and Lords. In the absence of that, the only recourse a domestic court has is to exercise its discretion to make a Declaration of Incompatibility under section 4 of the Human Rights Act. It can provide no mandatory or pecuniary relief to a prisoner deprived of the right to vote.

For many, both in politics and in public law circles, the principle of Parliamentary sovereignty seems to be more important in the prisoner voting dispute than even the fundamental question of whether and to what extent we should disenfranchise those serving at Her Majesty’s pleasure. Prisoner voting is, in any case, not a popular proposition. Yet the analysis that justifies the UK defying or ignoring the Strasbourg judgments on this issue, at least insofar as UK plebiscites are concerned, does not necessarily extend in its totality to those conducted at a devolved level.

Two important developments in Scotland, one in 2013, which was covered here by Paul Reid, and one much more recent, have re-opened questions as to the validity of prisoner voting bans in the UK, especially those that do not depend upon section 3 of the Representation of the People Act. This is important, because if domestic courts continue to adhere to the central reasoning of the Hirst judgment, a finding that a legislative provision of the Scottish Parliament systematically and disproportionately interferes with the Convention rights of a class of individuals means that that relevant provision “is not law”. An Act of the Scottish Parliament is not the act of a legislatively supreme body; it has no force and effect if it is incompatible with Convention rights (s29(2)(d) Scotland Act 1998).

The first development was the means by which the 2014 independence referendum was delivered. Although the dominant view was that, in general, the Scottish Parliament lacks the legislative competence to hold an independence referendum, this obstacle was circumvented with a time-limited, conditional power, embodied in a “section 30 Order” approved by both Parliaments. Section 3 of the Scottish Independence Referendum (Franchise) Act 2013 transposed the ban almost verbatim from the UK legislation. In Moohan v Lord Advocate seasoned champion of lost causes Aidan O’Neill QC attempted to argue that the provision was incompatible with A3P1 of the Convention.

The insurmountable obstacle in that instance proved to be the scope of the right. It is worth remembering that A3P1 does not, as such, confer a right to vote, but requires that 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.”

Lord Hodge, in agreement with both the Inner and Outer House rulings, concluded that this provision could not be held to confer a right to vote in referendums, even of the kind entertained in a secession dispute. He pointed, for instance, to the recent Strasbourg ruling McLean and Cole v UK in which it was held that local authority elections fell outside of the scope of “choice of the legislature” for the purpose of A3P1. Adhering to the general trend of X v UK (which contested the prisoner vote ban for the EEC referendum), Niedźwiedź v Poland (2008) 47 EHRR SE6 (which concerned a Presidential election and an EU accession referendum) and Ž v Latvia No. 14755/03, 26 January 2006 (also concerning an EU accession referendum), the UK Supreme Court held by a majority of 5 to 2 (Lords Kerr and Wilson dissenting on the point) that a secession referendum fell outside the scope of the protections of the Convention.

Had referendums been protected by A3P1, however, the story would have been very different. Although Leslie Moohan and the other prisoners did not contend that they as individuals necessarily must be conferred the right to vote, the invalidation of the legislation preventing their inclusion on the electoral roll would, in the absence of further proportionate legislation being passed, have removed the principal obstacles to exercising such a right. This makes an important development in the Scotland Act 2016, in relation to Scottish Parliamentary elections, one that will give cause for legislative caution.

The Scottish Parliament did not previously have the power to set its own franchise, although since the Scotland Act 2012 it did have some responsibility for the administration of elections held in Scotland. Section 3(3) of the Scotland Act 2016 more fully devolves electoral law, with the effect that the Parliament may now amend its franchise. Holyrood has notably already exercised this power in passing the Scottish Elections (Reduction of Voting Age) Act 2015, which allowed 16 and 17 year-olds to vote in the most recent set of Scottish elections. The Act was passed last July with the assistance of a section 30 Order granted in February 2015, but is now competent under the regularised terms of the 2016 Act.

This poses an important question as to the structural integrity of electoral law in Scotland. As with any devolved matter, the laws passed by the United Kingdom Parliament prevail in Scotland until such time as superseding legislation replaces it. If the Scottish Government wishes to change the franchise, but to avoid legal challenge on A3P1 grounds, it need only leave the thorny issue of prisoner voting alone. For as long as the ban is contained in an Act of the UK Parliament, domestic courts will not challenge the legality of any refusal by an electoral registration officer to allow a prisoner to register to vote. Section 6(2)(a) of the Human Rights Act makes sure of that.

If, however, the Scottish Parliament were to replicate the ban in a piece of consolidating legislation, or proposed a broader scheme of reforms to the franchise in Scotland, they could begin to encounter difficulties. Were the Parliament, for instance, to seek to relax the prisoner vote ban, but did so (unlikely as it may seem) in a way that Strasbourg would nevertheless still consider to be systematically disproportionate, such a ban would be amenable to review in the Scottish Courts and would be liable to be struck-down.

This could create a perverse situation whereby striking-down a provision that is less offensive to A3P1 of the Convention would sustain a ban that was more offensive to its objectives! The scenario would raise a question of statutory construction: were legislative provisions intended separately to repeal s3 of the Representation of the People Act and to create a new, freestanding, less onerous ban, or were they intended only to provide new exceptions to the same ban? Striking the former down could grant all prisoners the right to vote; striking the latter down would prevent the relevant franchise extension. If the Parliament were to introduce any other kind of restriction on voting that was systematically disproportionate in depriving those conferred A3P1 rights under the Convention, the Scottish Parliament would similarly face difficulties its Westminster counterpart would not.

Against the backdrop of the EU referendum and Theresa May’s recent remarks about the UK’s continuing adherence to the European Convention on Human Rights, the limits to the legislative powers of the Scottish Parliament should come under closer scrutiny. Both EU law and the Convention are embedded in Scotland’s devolution settlement, limiting Holyrood’s legislative competence in the same way as they do for the Northern Irish and Welsh Assemblies. Any proposal to repeal the Human Rights Act, which defines “Convention rights” for the purposes of the Scotland Act, would have implications not just in prisoner voting but on any and every piece of legislation capable of interfering with a human right promulgated by the Holyrood Parliament. This impact would be both prospective and retrospective. Anyone hoping that the prisoner votes question will disappear completely is truthfully optimistic.

Graeme Cowie, Public Law PhD Candidate, University of Glasgow

(Suggested citation: G. Cowie, ‘Prisoners to Devolved Fortune? The Right to Vote and the Scotland Act 2016’, U.K. Const. L. Blog (18th May 2016) (available at https://ukconstitutionallaw.org/))