All elections are (potentially) illegal : Scottish court rules today (VERY LONG)

Today a tremendously important court case has been decided that may postpone the Scottish parliamentary elections (and lead to the postponement of English local elections) later this year.  Smith v Scott is a Registration Appeal Court case involving a prisoner’s attempt to register vote. 

His initial application to register was rejected by the electoral registration officer and the Scottish court was asked to consider whether this decision was compatible with the European Convention on Human Rights.  THe application to register was made in 2003, an appeal against the original refusal heard in the sheriff court in late 2003 and the sheriff gave a strong indication that while the appeal was refused the matter was incompatible with the ECHR (something that in Scotland can only be decided by the superior courts).  THe UK law on the matter was considered in Strasbourg in October 2005, and the prohibition was ruled contrary to the ECHR.  

The Registration APpeal Court was then asked whether the Representation of the People Act could be read to be compatible with the ECHR (which the court indicated it could not do – paras 21 – 28) or whether it had to be declared incompatible.  

The case was first before the court in February 2006.  At this time, the Scottish elections were a year and a quarter away.  Elections to the Scottish Parliament are to be exercised in accordance with the rules of the Representation of the People Act.  During legal debate the Scottish Secretary (in the case) accepted the Strasbourg decision.  The consequence of this is that no election in the UK where convicted prisoners are precluded from voting is compatible with the ECHR (see para 38) and must consequently be challengeable (where majorities are sufficiently narrow) – a startling point that the news organisations haven’t yet picked up (the local Scottish coverage is excusable).  The broader implications for Scottish politics though are explained below.

The Court note the approach of Westminster to the Strasbourg case and were kindly provided with a government action plan at para 40:

“At the start of this part of the debate [November 2006] a copy of a document entitled “Action Plan for policy on Prisoner voting rights following the October 6 2005 judgment of the Grand Chamber of the ECtHR in the case of Hirst v the United Kingdom” was handed up. It was a Government document and was in the following terms:


Written Ministerial Statement in Parliament committing to consultation
2 February 2006
Research and Drafting of Phase 1 consultation (Principles, Context, and Options)
February and March 2006
Obtain Ministerial clearance of draft Phase 1 paper and publication
April-May 2006 (during purdah period for local elections)
Consultation period (12 weeks minimum)
June-August 2006
Analysis of responses and (if appropriate) drafting of Phase 2 consultation (Preferred Option & Detailed implementation issues)
Sept – Nov 2006
Obtain Ministerial clearance for and publish Response paper for Phase 1 paper and (if appropriate) draft Phase 2 consultation paper
November 2006
Consultation period (12 weeks minimum)
December 2006 – February 2007
Analysis of responses and drafting of Response paper for Phase 2
March – May 2007 (during purdah period for local elections)
Obtain Ministerial clearance for and publish Response paper for Phase 2
June 2007
(If appropriate) Drafting of appropriate legislation to effect change
July – September 2007
Introduction and passage of legislation
From October 2007? (Timing subject to Parliamentary business)
Counsel for the respondent informed us that the Action Plan was produced in terms of Article 46 of the Convention to enable the Committee of Ministers to supervise the execution of the judgment in Hirst. She accepted that there had been some slippage in the timetable in the Action Plan.”  That there has been some slippage (the point conceded by the UK government) is apparent from the statement of what actually happened (at para 42)

“We were then referred to a number of passages in Hansard, where the following statements on behalf of the Government in answer to parliamentary questions in relation to the judgment in Hirst are recorded: 

– On 13 October 2005 in the House of Commons the Minister of State for the Department for Constitutional Affairs said that the Government was giving urgent consideration to the judgment of the European Court of Human Rights and would bring forward proposals in due course.
– On 2 February 2006 in the House of Lords the Secretary of State for Constitutional Affairs and Lord Chancellor said that the judgment had raised a number of difficult and complex issues which needed careful consideration. He had concluded that the best way forward would be to embark on full public consultation in which all the options can be examined. He stated that a consultation document was in preparation and he hoped that it would be available for discussion ‘in a few weeks’ time’.
– On 23 March 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs, who was also the Minister for Human Rights, said that the Government intended to publish a consultation paper, which it would be doing ‘in due course’.
– On 17 May 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the Government had undertaken to issue a full public consultation on the issue of prisoners’ voting rights in response to the judgment.
– On 25 May 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the UK Government had responded to the European Council of Ministers, setting out a plan of action that ‘should see the consultation paper published before the end of June 2006’. (This is presumably the Action Plan previously referred to.)
– On 9 October 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that a specific date for publication of the paper had not yet been set. However, the Government were hopeful that it would be published ‘shortly after the end of the Summer Recess’.
– On 25 October 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the position had not changed since 9 October and that a specific date had not been set for publication of the consultation paper.”

The consultation paper – promised for June 2006 in the action plan – at the hearing in the Smith case (November) still hadn’t appeared.  The court noted that in the action plan and the background government papers there was one rather surprising omission – that the Scottish Parliament would dissolve and be re-elected by parliamentary elections in May 2007 had been ignored.  At the hearing in November it was noted at para 43 that 

“The draft had been completed in August 2006 but had not yet received ministerial clearance. It had not been forgotten about, however. The imminence of the Scottish parliamentary election had been brought to the notice of those responsible for the document. Their response was that it was a very complex matter and delay in producing the consultation paper had regrettably resulted.”

As the court obviously pressed the government in NOvember 2006 the government called in the heavy mob.  On 24th November 2006 the Advocate General for Scotland appeared (the UK government’s Scottish legal adviser, currently former solicitor general Lord Davidson).

His comments to the court give some indication of ministerial disputes about prisoner’s voting rights.  Davidson told the court

” the draft had been produced in August 2006. It had been circulated and discussed by Ministers but as yet they had been unable to come to a collective view. The Advocate-General then gave an undertaking to the Court on behalf of the Secretary of State for Scotland that the relative consultation paper inviting views on amending legislation would be published on or before 19 December 2006, the date when Parliament would rise for the Christmas Recess. He said that both the Secretary of State for Scotland and the Secretary of State for Constitutional Affairs recognised that procedures should have been put in place more quickly to deal with the situation. Why that was not done, he explained, was a result of the internal processes of government following on the judgment in Hirst. That judgment had resulted in a considerable debate within the Government. The Advocate-General was not privy to the internal discussions but both Secretaries of State were acutely aware of the proximity of the Scottish parliamentary election. The August draft consultation paper could not be produced because there had been no agreement on it as yet, and because conventionally an agreed draft must go first to Parliament. He was able to say, however, that it was not proposed to retain a blanket ban on the right of convicted prisoners to vote at parliamentary or local government elections. The proposals would enfranchise at least some of such prisoners. While the time limits for the various necessary stages to enable the legislation to be amended before the Scottish parliamentary election would be very tight, it was technically possible for the procedure under section 10(2) of the Human Rights Act to be carried out in time. The appropriate order could timeously seek to enable convicted prisoners to be enfranchised but he was not in a position to give any undertaking as to what form the order might take.”

The consultation paper was finally published on 14th December 2006 (with no reference to the Scottish elections in 2007 and with a 12 week consultation period (which takes us up to March 2007)).  This paper is to be followed by a second consultation paper with a 12 week consultation period.  Now, it doesn’t take a genius to work out that 3 months added to the first period will at minimum mean that legislation will be drafted in June 2007 (although a time to consider the consultation responses to the first paper will mean a further two or three months) and then legislation requires to be prepared.  The end result is that due to the unseemly delay in producing a paper (as a result of differences within the government) the reforming legislation can’t be in place for the Scottish elections, and could preclude a snap election called by whomsoever succeeds Mr Tony Blair.

Publication of the consultation paper meant that a further hearing in the case was necessary.  At this hearing counsel for the prisoner argued that a declaration of incompatibility (that the elections would be contrary to the ECHR) was desirable.  The Advocate-General (now firmly ensnared in the case) disputed the suggestion.  At para 51 the court note

“The Advocate-General acknowledged that, given the timetable envisaged in the consultation paper, there would not be a system in place which allowed for any convicted prisoners to vote by the time of the Scottish parliamentary election. The Government was completely aware of the imminence of that election. While it would have been technically possible to change the law in time for the election, the Government had decided that in all the circumstances it was not appropriate to bring forward new arrangements in a rush. It was a complex and controversial matter and there was a wide range of possible changes to the present law. There were competing views as to what these changes should be and, indeed, that was the reason why it had taken so long for the Government to reach the present position. “

The Advocate-General’s position can be summarised as follows:  We know the law is incompatible with the ECHR, therefore don’t declare it to be incompatible.

The court then had to consider what to do and at para 52 their patience wars thin.  Stressing that this is not a new issue, that previous amendments to the Representation of the People Act had dealt with remand prisoners, that there was much Strasbourg case law, and that the case that ended up in Strasbourg in 2005 had started in the High Court in England in early 2001 with application to Strasbourg on rejection of the English case and refusal of leave to appeal in July 2001, the court indicate that the rather slack timetable of the UK government is blameworthy.

The court said at para 55,

“We cannot refrain from commenting, however, that it is unfortunate that the urgency of the situation was apparently only appreciated so late in the day and only in response to direct questioning from the Court. The undertaking was as to when the consultation document would be published. That was realistically as much as could be expected but it was obvious then that there was some way to go before any amending legislation could be in place. That is confirmed by the timetable envisaged in the consultation paper which has now been published. It is accepted by the Government that there will be no amending legislation before the Scottish parliamentary election in May 2007. We fully understand why the Government does not at this stage wish to rush forward with amending legislation but the fact remains that the Scottish parliamentary election in May 2007 will take place in a manner which is not Convention-compliant.”

Accordingly, the court pronouned an order that the law was incompatible with the European Convention.

Now, the next step is for a prisoner (or prisoners) to raise an interdict to prevent the running of the election.  Any relevant Scottish electoral registration officer is obliged to act in accordance with the ECHR and cannot act in a manner contrary to the ECHR.  Applications for interdict will almost inevitably succeed unless amending legislation is introduced immediately.

This case is hugely important with UK wide implications (for the local elections and any proposed snap general election).  ACcordingly, when one looks at the website for the BBC news website it’s a little surprising to see no mention in the headlines in the main UK news page or UK politics news page; and that the constantly updated Guardian main page and politics page, have nothing at all on the story. 

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in human rights, illegal elections, law, politics, prisoners, scottish parliament, Uncategorized. Bookmark the permalink.

6 Responses to All elections are (potentially) illegal : Scottish court rules today (VERY LONG)

  1. Anonymous says:

    vote veto
    Bonnet de douche ! and mange tout ! as Del-Boy might say.
    What a pickle.
    Thank you for this explanation. I was only half-listening to the Scottish news tonight when I got home from work – there was a sort of half-joking quality to the report about this – ho-ho, a few prisoners might delay the elections because their human rights to vote have been infringed, ha-ha.
    But it’s clearly no laughing matter.
    Fortunately, it seems likely that no-one in Government is to blame for this parlous situation and happily there will be no resignations. In an emergency, Donald Dewar can be blamed.

    • Re: vote veto
      The Newsnight Scotland coverage was even more embarrassing. Kenny MacAskill played the political card (and ignored the fact that those on remand have had the vote since 2000), and ignored Bruce’s question as to “How would you comply with the ECHR?” (because the case here is simply applying the Strasbourg decision to the Scottish situation). Pauline McNeil was her usual blustering self, demonstrating (for someone with a law degree) that she understands very little law, and indicating again the inappropriateness of her position in the Justice Committee in the Parliament. And Bruce downplayed the consequences and then failed to deal with MacAskill’s questions about where the line should be drawn.
      It would take a brave judge or a maverick to grant an interdict. But the sheriff courts have one or two of the latter (perhaps an early case in Ayrshire may focus the mind a little). And the issue is that as the relevant Scottish bodies are under the control of the Scottish Parliament/Executive (in relation to local government elections at the very least) and while the franchise is reserved (Scotland ACt 1998, Sch 5 para B3) given that public authorities are to comply with convention obligations, that the Executive and Scottish Parliament are to comply with the ECHR (ss 29 and 57 of the Scotland Act 1998) applications for interdict could be made and are not certain to be rejected. The opinion of the court yesterday is quite scathing (albeit in suitably temperate language). Some may view that as a green light to respond appropriately.

  2. Anonymous says:

    Section 4(6) of the Human Rights Act 1998:
    ‘A declaration under this section (“a declaration of incompatibility”)-
    (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
    (b) is not binding on the parties to the proceedings in which it is made.’
    Section 6(2), referring to section 6(1) (“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”):
    ‘(2) Subsection (1) does not apply to an act if-
    (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
    (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.’

    • One of the difficulties here is that various Scottish public authorities fall within the remit of the Scottish Executive and as such under the Scotland Act require to act in compliance with the ECHR. If they do not then the action (under the Scotland Act) is ultra vires. Scotland has a dual system of human rights enforcement at the moment, and in previous cases the court has indicated that they can strike down acts of the Executive or Scottish parliament that are not convention compatible (while declining to do so in various cases because the convention was not breached). The trouble here is that any ancillary action has a 3 judge Court identifying that the failure to allow prisoners to register to vote is not convention compliant. Now, lower courts could legitimately use that case as authority for wider actions (if appropriate applications are made).

      • Anonymous says:

        surely there is some sort of public policy qualification that the executive could use as a defence to action of interdict stopping the elections? its been a while since i have read the convention-related legislation but could it not be argued that it would be in the interests of public policy and democracy to go ahead with the election? and thus refuse interdict?

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