Prompted by a tweet from Ian Smart tonight asking if 16 year old prisoners will be given the vote in the independence referendum it seems reasonably clear that the answer must be yes.
First, the Scotland Act 1998 provides that any legislation passed must be compatible with the European Convention on Human Rights. Section 29 of the Scotland ACt provides that,
“An Act of the Scottish parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”
When is an Act outside competence?
That is determined by s 29 (2) of the Act which says a provision is outside competence if “(d) it is incompatible with any of the Convention rights of with Community law”.
The Convention rights are defined in s 126 of the Scotland Act by reference to the Human Rights Act and includes the European Convention on Human Rights and protocols (including the first protocol which includes the right to vote) and must be assessed in accordance with the jurisprudence of Strasbourg.
The Scottish government has – under the Edinburgh Agreement as commonly understood – the power to determine the franchise for the referendum (which the government wishes to expand from the usual franchise for parliamentary elections to include 16 and 17 year olds). Any legislation to expand the franchise must comply with ECHR jurisprudence regarding the right to vote or the provisions will not be law as being outwith the competence of the Scottish Parliament.
When considering the right to vote a line of Strasbourg cases have determined that a blanket ban on prisoners having the vote is contrary to the ECHR. The cases include Hirst v UK, and cases up to Scoppola v Italy (discussed here with lots of links). The Strasbourg jurisprudence has already been applied in Scottish courts in Smith v Scott in 2007 which held that a blanket ban on prisoner voting was contrary to the ECHR and where the Scottish courts, for the first time, issued a declarator of incompatibility indicating that the Representation of the People Act did not comply with the European Convention (this case has been ignored in the discourse in the UK at Westminster on the prisoner voting issue).
Given the decision in Smith v Scott, the support for the decisions relied on in Smith in Scoppola, and s 29 of the Scotland Act any attempt to legislate to extend the franchise without extending the franchise to prisoners will be incompatible with the ECHR and therefore will fall outwith the competence of the Scottish Parliament.
The conclusion is straightforward.
If the Scottish government wishes to extend the franchise to 16 and 17 year olds it will have to extend the franchise to prisoners or the referendum legislation may be subject to legal challenge.
I for one would welcome the extension of the franchise to comply with the ECHR requirements some years after the Scottish courts initially pronounced on the issue and against a background of Westminster intransigence. I am sure the Scottish government will not shirk from its ECHR responsibilities.