Okay – the story so far. Earlier today James Landale, top BBC political news bod, reported sensational news (my earlier post is here) Some human rights lawyers had given evidence to a parliamentary committee and – to the general astonishment of no lawyer, but to the apparent shock of political journalists and government ministers – pointed out that the European Court of Human Rights ruling on prisoner votes in the Hirst case applied not only to elections to Westminster but alos to those devolved legislatures – such as the Scottish parliament. Accordingly, a failure to give prisoners the vote for the Holyrood elections would be contrary to the European Convention on Human Rights, and mean that the prisoners denied their right to vote may claim compensation.
Tonight, Landale’s smiling face appeared on the News at Ten to advise we loyal viewers that he had checked the position with ministers who were of the view that their obligations only extended to the Westminster suffrage.
At this point (after my earlier post) I shouted at the television, waking up small children.
Landale smugly stated that this matter will end up in the courts.
Of course, this matter would end up in the courts if there was anything left for the courts to decide. The trouble is that the Scottish courts decided in 2007, that (a) Scottish Parliamentary elections were affected by the Hirst ruling because the Scottish parliament was a legislature for the purposes of Article 3 of the First Protocol to the European Convention on Human Rights (the point is conceded by the Secretary of State for Scotland in the case); (b) the bar on prisoner votes in section 3 (1) of the Representation of the People Act 1983 was contrary to the ECHR and therefore (c) a declarator of incompatibility was pronounced indicating that the Representation of the People Act was contrary to the ECHR and therefore required amendment to ensure the UK fulfilled its general international obligations.
The case deciding this was Smith v Scott, a decision of an appellate division of the Court of Session (albeit constituted as a Registration Appeal Court) the appellate court equivalent to the Court of Appeal in England and Wales). This decision, apparently unknown to the government ministers briefing Landale (and it seems their advisers who assisted the Cabinet Office minister to prepare his ridiculous statement in December that only Westminster elections were effected) has of course been hidden from sight. It is hidden from sight by appearing in full on the Scottish courts website with a neutral case citation  CSIH 9. It has been hidden away in the official Scottish case reports at 2007 SC 345. With commentary on the case hidden away on the open accessible website of the Scottish Human Rights Law Group.
So, what does Smith v Scott say?
“(ii) Whether this Court should in the exercise of its discretion make such a declaration
 As noted earlier, the Secretary of State accepts the decision in Hirst. It follows that as regards convicted prisoners no election in the UK to any legislature would be compatible with the Convention. Since the Secretary of State also accepts that the Scottish Parliament is a legislature for the purposes of Article 3 of the First Protocol, the matter is of some urgency because the next election for the Scottish Parliament is due in May 2007. [editorial note, 4 years later the point of urgency seems somewhat more pressing given what is said below]
[after a narration of the law government history in relation to implementation of remedial legislation to deal with Hirst and various inexcusable slippages in the timetable the judges note]
 We have considered it appropriate to set out the history of this matter in full. No doubt the issues which faced the Government following upon the judgment of the European Court of Human Rights in Hirst were complex and required careful consideration. We fully recognise that. But it would be surprising if the Government had not given some consideration to these issues, at least as a contingency, long before then. The question of prisoners’ voting rights is not new. The Representation of the People Act 2000 made provision enabling prisoners on remand to vote. Under Strasbourg jurisprudence the voting and other rights of convicted persons have been considered on several occasions. As discussed in the judgment in Hirst, contracting States to the Convention have adopted a number of different ways of addressing the question and prisoners’ voting rights have also been considered in other jurisdictions. In the Hirst case itself, before his application to the European Court of Human Rights, the applicant had applied to the High Court for a declaration in terms of section 4 of the Human Rights Act that section 3(1) of the 1983 Act was incompatible with the Convention. That application was heard in the Divisional Court in March 2001, with the judgment delivered in April of that year. The application was rejected, and leave to appeal refused, and then (in July 2001) the applicant presented an application to the European Court of Human Rights against the United Kingdom. The case was allocated to the Fourth Section of the Court and on 30 March 2004 a Chamber of that Section issued its judgment in which, after a full review of the relevant authorities, it held unanimously that there had been a violation of Article 3 of the First Protocol.
 Counsel for the Secretary of State recognised that arguments similar to those which were being advanced in this case had been rejected by the House of Lords in Bellinger v Bellinger 2003 2 AC 467. In that case Lord Nicholls of Birkenhead said this, at paragraph 55:
“If a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In exercising this discretion the court will have regard to all the circumstances. In the present case the government has not sought to question the decision of the European Court of Human Rights in Goodwin 35 EHRR 447. Indeed, it is committed to giving effect to that decision. Nevertheless, when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention. I would therefore make a declaration of incompatibility as sought.”
 That was the unanimous view of their Lordships. In our opinion much of what Lord Nicholls said applies equally, or with greater force, to this case. It is perhaps worth noting that the decision in Goodwin v United Kingdom was issued in July 2002, only some six months before the hearing and nine months before the decision in Bellinger in the House of Lords. Furthermore, a month or so before the hearing in the House the Government announced its intention to bring forward primary legislation to deal with the relevant problems. So the Government moved much more quickly in relation to Goodwin than it has done in relation to Hirst. This Court is not, of course, the court of final appeal in this country for all cases but it is the court of final appeal for a case such as this and while this case may not perhaps be of such sensitivity as Bellinger, it is nevertheless of far reaching importance.
 We fully recognise the importance and significance of the undertaking which was given by the Advocate-General on 24 November 2006. 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.
 Having regard to all the circumstances of the case, we have come to the view that the Court should not merely observe that section 3(1) of the 1983 Act is incompatible with the Convention but should make a formal declaration of incompatibility to that effect.”
The position then is clear
1. Scottish elections are subject to the Hirst ruling
2. The government was told this in an appellate decision more than 4 years ago.
3. The court 4 years ago declared that all elections thereafter would be operating in manner that did not comply with the ECHR until the prisoner voting blanket ban was lifted.
4. The UK government has ignored a declaration of incompatibility issued by an appellate division of the Scottish civil courts.
5. The UK government has not given any explanation for its failure to respond to this declaration of incompatibility.
6. The UK government ministers (and the gullible journalists briefed by them) appear either to be wilfully ignoring this case, or do not know this case exists – despite it being fully published, and referred to in later material.
To then ridicule the suggestion that there may be compensation payable to prisoners denied their right to vote – because the Uk government has failed to respond over this four year period – seems naive. Especially when such actions were threatened 4 years ago in the immediate aftermath of the decision that the election was not convention compliant, when the government – arguably – had not had time to act. That excuse does not wash four years after a declarator of incompatibility.
So rather than run spurious arguments to pretend Scottish elections don’t need to be exercised in a manner that is Convention compliant, and as the matter has already been decided by the appeal court in Scotland, perhaps the UK government should turn its attention to remedying the deficiency in the system.
And if our journalists did a bit of basic research they would know that a government line fed to them was cobblers. But then that would involve journalists engaging with the law in an active intelligent way – and we can’t have that now. Of course if anyone wants to bring the attention of the BBC political journalists to Smith v Scott to allow them to ask sensible informed questions of government ministers that are making stupid points and running spurious arguments you would of course be doing the country a service. I won’t hold my breath though.