Tag Archives: ECHR

Repealing the HRA…

…or why we need to get a grip on multi-level legislature.

It has long been the Conservative Party’s intention to repeal the Human Rights Act 1998 [the ‘HRA’] and replace it with a British ‘Bill of Rights’ (which would actually be an ‘Act of Rights’). Now that there is a Conservative government, this is very likely to happen. But what would getting rid of the HRA mean? Would it achieve what proponents of the move believe it would, and what would it mean in a Scottish Context? When you explore these questions, and untangle the myriad of interwoven Human Rights protections in the UK Constitution, it appears that repealing the HRA alone would be of very limited effect and could cause serious constitutional issues in a devolution context.

The HRA was passed in 1998 and changed the UK’s relationship with Human Rights in three major ways.

  1. The European Convention on Human Rights [The ECHR] could now be relied on in domestic courts. It made international law an inherent part of the domestic law as well. This means people can use ‘Human Rights arguments’ just as easily in the Supreme Court in London (or the Court of Session in Edinburgh) as they can in the European Court of Human Rights in Strasbourg. [s.2 HRA]
  2. Public Authorities in the UK could no longer act in a way that was contrary to ECHR Rights unless they absolutely had to because the law made them. This includes public hospitals and local councils, but also courts and tribunals, which means that judges and decision makers have to consider the Human Rights implications in all of their judgements. [s.6 HRA]
  3. Courts are bound to interpret legislation in a way which is compatible with ECHR rights, so far as it is able to do so. If, it finds, there is no way a law can ever be read in a Human Rights compliant way, then the law still applies but the court is able to issue a “declaration of incompatibility” which…declares the law is incompatible. [HRA ss.3 & 4]

Using the example of a prisoner wanting to vote in an election; Article 3 of Protocol 1 [A3P1] provides for free and fair elections, where people are allowed to vote, which has been interpreted to include prisoners (or at least exclude a blanket ban on all prisoners). Point 1 allows our hypothetical prisoner to argue the A3P1 case in Scotland, and not have to have the expense of a European legal trip. Point 2 means that it were there any doubt in the law, the Electoral Commission would have to act in accordance with A3P1 and give our prisoner the vote – but unfortunately the Act of Parliament depriving out prisoner of the vote is very clear. But Point 3 means that, even though there is no way the law can be read as complying with the UK’s A3P1 duties, the court can still issue a Declaration of Incompatibility, bringing the problem to Parliament’s attention and showing the issue. Unfortunately for our prisoner, however, the law remains enforceable and they still can’t vote in the election.
The HRA makes Human Rights a central part of our legal framework in many situations. The above steps would apply if it was someone who felt they’d not been respected at work; mistreated in an NHS hospital; not had their immigration application properly considered; or felt their religious freedoms were under attack. Underpinning all of this is the fact the UK was one of the founding members of the Council of Europe and signed up to the ECHR in the 1950s after playing a key role in drafting it. The ECHR protected Human Rights from a far away place for those who could afford it; the HRA brought Human Rights home and allowed British Judges a lot more room in applying European Jurisprudence in a British context. It also ensures that, as a nation, we do all we can, in our laws and in our institutions, to uphold the norms and values we claim to cherish.

But, the HRA is not the only use of the ECHR in our domestic constitution. The Scotland Act 1998 [the “SA”] states in s.29(2)(d) that the Scottish Parliament cannot legislate contrary to Convention Rights, and any provision which professes to do so is not law. This is clearly a much stricter regime than the HRA imposes on the UK Parliament. The HRA says “you shouldn’t legislate contrary to the ECHR, and we’ll try our hardest to read the law in line with the ECHR, but if you do it anyway, the law will still apply”, while the SA takes an approach much more akin to the US Constitution, “these are the limits of your power and you cannot cross them, because if you do the law you attempt to pass will not be law at all”. This provision is separate to the HRA – repealing the HRA will not change this.
What it would change would be, say, Glasgow City Council’s duties re. Human Rights. Local authorities, like all public authorities, as I said in Point 2 above, bound to act in accordance with ECHR rights at all times, unless it is required to act otherwise by law. If the HRA was repealed, Glasgow City Council, like all other councils across Scotland and the UK, would no longer be burdened by this duty. It could, then, act to ban all parades of a religious or political nature in the city centre – as is within its power as a local authority. It would arguably go against the ECHR (particularly Articles 9 and 10), but it is now able to take decisions that do not respect Human Rights.
The Scottish Parliament, however, if it attempted to take that very same decision, would be acting outwith its power by virtue of the provisions in the Scotland Act 1998, because Acts of the Scottish Parliament would still have to comply with the ECHR compatibility obligation.

There is, however, a further constitutional twist in the Human Rights tale. Under the Scotland Act 1998, the Scottish Parliament is unable to amend or repeal the Human Rights Act (as it is a ‘protected provision’ under Schedule 4 p.1(2)(f)). HOWEVER, ‘Human Rights’ more generally are not listed as a reserved competence in Schedule 5, meaning that the Scottish Parliament could competently legislate re. Human Rights. This has two important implications:

  • Under the Sewel Convention, the UK Parliament will seek consent from the Scottish Parliament when it will legislate re. a devolved matter. If Holyrood (as it most likely would) withholds its consent to HRA repeal, then the UK Parliament could still legislate [SA s.28(7)] but would likely experience major political fallout, at a time when that could stretch Scots-Anglo tensions more than ever. This is a fallout that would be increased because Clause 2 of the ‘Draft Scotland Clauses 2015’ will also “…recognise that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament” – linking HRA repeal into the almighty and ever-pervasive vow!
  • Even if the UK Parliament did repeal the HRA 1998, because ‘Human Rights’ is a devolved matter, there would be nothing to stop the Scottish Parliament introducing a Scottish Human Rights Act to replace it in Scotland. This would bring Scottish public authorities (Local Authorities, Scottish Government Organs etc) back into the scope of the ECHR – but would have a limited effect on UK public Authorities operating in Scotland (such as the Asylum Tribunals, where Human Rights have played an increasingly important part over the last 20 years). This would also, inevitably, lead to a rash of cases about the Scottish Parliament’s competence and where the ever-fuzzier lines between UK and Scotland exists.

I’ve not even touched the important part the HRA plays in the Good Friday Agreement…but from a purely Scottish perspective, it’s already clear to see how difficult it will be to separate out the ‘European Rights’ from our domestic law. Some would argue, and I am one of them, that this is because, fundamentally, these are British Rights. Others would say that this serves as proof of just how much British sovereignty has been lost since the Human Rights Act came into being. You can make of this situation what you will, but I leave you with this: the UK wins 99.5% of all Human Rights cases it faces in the ECtHR, and as decade and a half long issue of prisoners’ rights to vote shows, even those we lose don’t make us change anything quickly – it is at home the HRA and Human Rights have had the largest effect. Is that really a problem?

If you want more info on what the Human Rights Act, the ECHR and Human Rights more generally mean to you, then visit the brand new RightsInfo.org, which has stories, graphics and stories about how human rights have shaped and improved the UK. It’s brilliant.


Refuge in Audacity?

…or a long story on a lot of not very much.

It’s been a busy few weeks for me. In the past few weeks on the Diploma I’ve had 6 or 7 assessments, some written, some oral and some both. Street Law lessons have been great – and I was part of a ‘Day of Street Law’ at Kyle Academy in Ayr {Which I will be writing about in due course}, but they do, of course, take time. I also had a chance to talk to some aspiring Law students, answering their questions about Law and Law studentry – which also provided a nice reflection at the very end of my university life {and I’ll be writing about that too}. There’s also an election on – but that’s for another time. But over the past few weeks I have also had a secret…I have been genuinely afraid.
I have an unusual outlook on things sometimes. This has always been the case. It’s not intentional, and it’s not a cultivated personality trait – but I have a natural inclination to try unusual approaches when faced with an unusual challenge. And it’s not that I see my approach to things as unusual. I think (at the time at least) that it is eminently sensible and has advantages over other people’s – I wouldn’t do it otherwise. It’s other people who tell my my approach is unusual.

A lot of the Diploma at Glasgow University is about standing up and saying things. It’s definitely a strength of Glasgow’s DPLP, since that’s what most lawyers do. I don’t mind giving speeches and talking to people. I do it all the time and know that most of the time I do well with them. My fear was not about giving a speech in front of people. They always say “Don’t talk about exams once you’ve done them. It’ll only make things worse.” This, I now realise, is excellent advice to be followed at all times.
One assessment I had recently (for my Human Rights class) was a mock employment tribunal. A teacher had been fired by the Local Authority for making several comments about certain pupils in private messages on Facebook, which had since entered the public domain. One message in particular was about a girl who had been causing him problems and he said that she “…should just wait until the prelims :-)”. He was arguing that this statement was protected under Article 10 of the ECHR (‘the right to free expression’). In my role, representing the Local Authority trying to uphold the dismissal, I had to show that this kind of statement wasn’t protected under Article 10.

The easiest way for me to do this, I felt, was to show that it was to show that this was a threat to the girl’s “rights and reputation” in that there was an implied threat to mess up the student’s prelim mark, just to get back at her. Nothing unusual in this so far – a conventional approach. The only problem with this was that there is another way to read the teacher’s comment: This girl is stupid and I’m sure her prelim results will reflect that. I wanted to put forward a case that was stronger than just “but don’t you think I’m right”. I wanted to show that my interpretation was right and that the law was on my side. And I saw in that sentence an important point…THE SMILEY FACE.
Taken on its own the meaning was ambiguous – but why, then, include the smiley face? Did the smiley face lend the sentence another meaning, and offer additional weight to my side. I needed a case that showed that an otherwise innocent statement could be corrupted by the inclusion of an apparently separate, but still related, addition. It was only at the last minute a case jumped out at me. To me, it appeared to be brilliantly on point – it was a completely sensible choice. I was proud of myself remembering it. This pride lasted about 30 minutes.

The case of McAlpine v Bercow [2013] EWHC 1342 (QB) was my secret weapon. You may remember in 2013 that BBC Panorama aired a program alleging that a Tory Peer was at the centre of a Parliamentary paedophile ring. This program did not name the Peer (after taking legal advice). The BBC and the Panorama staff took pelters for it. Meanwhile, Sally Bercow (the Speaker’s wife) tweeted the following:

Why Is Lord McAlpine Trending

This tweet, on the face of it, is harmless. The phrase “Lord McAlpine” was, in fact, trending at the time Bercow tweeted. Asking why something is trending  (i.e is being talked about) on twitter is quite normal. Before her death, “Thatcher” regularly trended and people often asked if she had died. The question itself is common. But, Lord McAlpine who was a Tory Peer and fit the description of the alleged paedophile, felt there was veiled suggestion in this tweet. He felt that the inclusion of “[innocent face]” added a nefarious intent added something not present in the question asked alone. He sued Bercow for defamation (libel as it is in England) and won. Specificlly, the court said that the inclusion of “innocent face” was a “stage direction”, asking readers of the tweet to:

 “imagin[e] that they can see [Bercow’s] face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question.” [para. 24]

and further:

“There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question. [para. 84]

The words “innocent face” (which is as damn near as close to an emoticon as you can get – I don’t think an ‘innocent’ emoticon exists) are what hung her. The question of itself was genuine, but this appendage at the end got her. THIS was my case. OK it was English, and the law is slightly different up here in Scotland, but it was sound reasoning in an area where there’s quite a bit of cross-boarder sharing. Plus, it’s a case involving computers – where the law is severely lacking. At the very least, it was a nail (however formally shoogly) on which I can hand my legal jacket.

Come my assessment, I went through the rest of the case and came, lastly, to he “…just wait until her prelims :-)” part. I was one of the last assessments taking place and the rest of the class, having done their’s, were asked to stay and watch the others. I’m not a fan of this, but that’s the way they do it. I made my point like I would any other. The factual circumstances were important, so I explained the facts and took the points:

  • There was a highly publicised program on the BBC alleging a Tory Peer was a paedophile.
  • Lord McAlpine is a Tory Peer.
  • Sally Bercow tweeted what she did and included “[innocent face]” at the end of it.
  • The Court held that this inclusion was enough to change the meaning of the rest of the communication.
  • Therefore it was open to the tribunal to find that the teacher’s “:-)” prejudiced a sentence that could otherwise be interpreted innocently.
  • By doing so, it would be an threatened attack on the rights of others and so fall outwith Article 10 protection.

I finished my argument and thought I’d gone through it well. But then I could hear small titters behind me. This is not what I was expecting. But, I sat and listened to my opponent’s case. The marker made a comment (one many markers make after the oral assessments) that he had heard two interesting arguments – but (with some degree of irony) his facial expression suggested that he had found one more “interesting” that the other.
Our class developed a custom of forming a ‘jury’ after these hearings to decide the ‘outcome’. It didn’t affect the grade we got, but was just a discussion on the issues. This vote didn’t go well for me. When I joined the rest of those who had completed their assessments I asked some of them how they felt it went. Despite the Bercow case being only the last minute of my 6 minute submission, that was the only thing they highlighted. It wasn’t an argument anyone else representing the LA had made – not a case they’d brought in. And this got me worried.
One person thought it was “brave” I had mentioned the case. I sat through the next ‘hearing’ and they never made reference to the Bercow case either. I was now genuinely afraid that I had messed up this assessment BIG TIME. To me the point I was making could not be clearer. The classmates I spoke to weren’t so certain. At the time the marker had been smiling – but were those smiles  meaning “Good approach. Solid judicial basis. He’s done his homework.” or “What on earth is this guy on about”?

Now, I was afraid.

The next few weeks were terrible for me. I hate failing. I have failed a test exactly twice in my life, and both of them were my driving test. It’s not a thing I cope well with. At the next few tutorials, before the grades were given out, reference was made to my Bercow case. None of them were mean-spirited, but there were a few jokes about it. I developed a standard response of “THAT CASE MADE A RELEVANT LEGAL POINT”…but few people seemed to accept this, and slowly, I wasn’t sure I did either.
Apparently, every time you remember something, you don’t actually remember the actual event, but the last time you remembered it. Slowly, certain things are exaggerated and,  eventually, what you “remember” bears little resemblance to what actually happened. I remembered making a great argument…but was that actually what happened?

The fear was very real. Then, on Tuesday an e-mail went round letting us know the marks were out. I was in the Citizens’ Advice Bureau at the time, but managed to scurry away for a few minutes to log-in and check the grades. I took it very, very slowly. I saw the feedback (after taking 5 mins or so to scroll down to look at it):CATcHNxUIAE5aTf:

Turns out all the worrying was for nothing and that, in fact, the case did make a relevant legal point after all. The submission wasn’t meant to be humorous – my discussions involving alleged paedophilia rarely are – which is maybe a sign of the “what I think is serious, others think is silly” problem I have to work on, but if it worked in my favour I’m not going to complain.

So what’s the point in all this? You’ve read 1800 words (apologies) on a (possibly amusing) non-story. I thought I did something; worried I hadn’t; then found out I had. The point is that a few things hit home for me personally. I really have to get over my anxieties of losing. Motivation is good, yes, but expecting to win every time is only going to lead to disappointment. But at the same time, I maybe need to be a bit more confident in my ability to construct a case and not go into panic mode when its attacked. I imagine that, should litigation come calling, not everyone will agree with my point of view.
In the end, maybe I was just lucky. It’s entirely possible that on any other day, or given any other marker, they would have seen the Bercow argument as an unnecassary sidetrack. My opponent picked up on the reference in the case to paedophilia and ran with it, suggesting that I meant the teacher could be accused of the same (which given the wider circumstances of the scenario wasn’t that far-fetched). If she had gone for it, there’s a great chance should could have wrecked my credibility. But I was lucky…this time.

#StreetLaw 3: Aliens and Human Rights

…or when I realised even kids hate lawyers!

For our third lesson we thought we’d be a bit more adventurous that we had one before and not use just worksheets and pens, but strips of paper with human rights (mostly according to the UN Convention on the Rights of the Child) which the groups can move about themselves. It was a risk…but we were prepared to take it. It was even more dangerous since Ms. Hemming – the class’s usual teacher who was usually in the class with us – was off sick. We would have a cover teacher, but would she appreciate the Street Law approach? And, more importantly, would we be able to control the class effectively without our security teacher?

The Premise

Instead of any sort of introduction at the start of the class, we asked the class to wait outside the door while we prepared. When they did come in we told people where to go in the class, and this would split them into groups. This seems a tad authoritarian, but last week we suspected people weren’t really sticking to the groups – so we wanted to keep an eye on it. Once the groups were in, David asked for a some examples of human rights from the class and we got a good mix of the big hitters (speech, religion etc.) and a few smaller ones (education, movement etc.) which was a good start. The class, it seemed, were aware of what rights were and a few different examples.

The Execution

Without further ado, I took over. “Folks, I have to tell you…”, I said as I headed out small bundles of 15 paper strips, “…while you were moving between classes, aliens have taken over the planet”. I expected a few titters – but there were none. “The aliens are friendly. They don’t want to hurt us or kill us, but they do think that we humans have too many rights, so we have to get rid of some. In fact, they want us to get rid of 3 of the rights in the bundles I’ve given you.”
And without waiting all 5 of the groups got to work. I didn’t tell them to start, nor did I give them a time limit. They just got started looking out the rights they would ditch. We were surprised, but pleased. But the different ways the groups approached it was interesting:

  • One group decided to sort the rights into 3 columns of “Keep”, “Ditch” and “Maybe” and see where they ended up. By the end of that they had 2 in their ‘ditch’ column so had to think hard about the 3 or 4 in their ‘maybe’ pile and which one they would offer up to their new overlords.
  • Most groups generally put all the rights out in front of them, someone picked one out and made the case for getting rid of it and then the group discussed it. These groups were a bit slower than the one above, but it got the job done.
  • There was one group who, arguing that they wanted one particular member to keep quiet offered up the “Freedom of Speech”. I suggested that his wasn’t wise, so they reconsidered.

In the end, all the groups managed the group, but the only rights all the groups agreed to ditch were “Right to Bear Arms” and “Right to Work”. Most groups found this step quite simple, saying that there were rights you would obviously keep, and others you would like, but don’t “need”. 1 group (not the columns group) said they found this hard because there were 5 rights they were toying with for their 3rd ditch.

This process was repeated twice more. In the second round, each group had to get rid of 4 more rights and the most common casualties were “Right to Assemble Peaceably”, “Freedom of the Press”, “Right to Marriage and Family” and “Right to a Lawyer” – the reasoning being that most of these rights were ‘included’ in other rights (which we would come back to later). One group did get rid of the “Right to Life, Liberty and Due Process” – which the class felt was an interesting choice.
In the final round the groups had to cut their rights down to just 3. After all the class had made their decisions, the “Right to Life etc.”, “Freedom of Speech” and (somewhat surprisingly) “Right to Education” were the winners (i.e – had the fewest groups ditching them). The final interesting point here was that there were members in 2 of the groups who were very determined to get “Freedom of Religion” into the top 3. One of the groups had an equally determined voice that it wouldn’t, but the other required both myself and the cover teacher to step in and impose democracy (3 – 2 to ditch) on the group (despite them already having abandoned the right to vote). This was a slightly unexpected turn.

The Conclusion

Having taken the votes and struck of the rights that our extra-terrestrial overlords had removed, David lead an exploration of what kind of world we now lived in. Some said that many of the rights were kind of repeating themselves. For example, “Freedom of Speech” mostly covered “Freedom of Religion”, “Freedom of the Press” and “Right to Assemble”, but when it was asked whether going to church or the mosque would be “speech” this became less certain. Possibly our egos having been bruised, the class were asked why they got of the “Right to a Lawyer” but kept “Right to Life, Liberty and Due Process”. Most said that a lawyer wasn’t needed for a trial to be fair, and that the “due process” would protect them anyway – but when asked what would happen if the process didn’t include right to a lawyer, there was again, a bit more hesitation.
To wind the class up we introduced the idea that these rights do exists and asked a simple question: Where do these rights come from? Ask any Law Student and they wouldn’t hesitate before saying the ECHR. But the pupils said it was “The Constitution” and “The Bill of Rights”. This highlighted 2 things to us:

  1. The influence of American Legal dramas continues unabated.
  2. We forget that we probably didn’t really know what the ECHR was before we started our degrees. And now we’d forgotten that we’d forgotten that.

Overall, the class again enjoyed this lesson – and I’d like to do it again with a different group (or age range) to see how the answers differ.

Teaching Points

+ This time we were able to control things when strong opinions were being discussed and debated.
+ We managed to cope really well without our usual teacher and her authority behind us.
– Something we weren’t prepared for – he “aliens” scenario actually distracted a few people into focussing on ‘how to beat the aliens’ and not on the Human Rights task at hand.

A Vote of Confidence?…

…or a dissent more important than the decision.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Greater Glasgow Health Board v Doogan (and Another) [2014] UKSC 68 can be found here.

The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the latest instalment in what seems to be the unending sage over whether Prisoners have the right to vote, with an #IndyRef twist thrown in…and gives an interesting glimpse of the thinking of some UKSC Justices.

Moohan (and Another) v The Lord Advocate [2014] UKSC 67

Full Judgement and Press Summary

The first judgement was that in the #IndyRef prisoners case where Mr. Moohan and a fellow inmate wanted the right to vote on 18th September 2014. This case was unusual in that, since the referendum would be held before the judgement would be ordinarily handed down, the UKSC made their overall decision known (the prisoners did not have the right to vote in the referendum) and the reasons would follow. Today we got the reasons.

The appellants relied on 4 key areas of law, both UK and International, to make their case, none of which successfully convinced the majority of the court that they had a right to vote.

EU Law
The prisoners argued that, since the #IndyRef was potentially also a vote on leaving the EU (since iScotland would not necessarily be an EU member state upon independence), the Referendum was illegal under EU Law, which under s.29(2)(d) of the Scotland Act 1998, would make it an illegal Act of the Scottish Parliament.
This view was roundly rejected by the UKSC 7-0, for two reasons. The first was that there was no guarantee of what Yes vote means. The Draft Scottish Independence Bill (as it stood) would have made all UK-citizens born in  Scotland ‘Scottish citizens’, and therefore no longer EU citizens, but this was not yet set in stone. Both sides conceded that negotiations to define the exact terms of Independence would take place if there was a Yes vote. Even if there was no change it would be the bill that removed EU Citizenship and not the Act that determined the Franchise for the Referendum that would be amenable to review. Even then, the court then noted that EU Law does not confer any right to vote in the first place, so the whole argument was fundamentally flawed.

The International Convention on Civil and Political Rights (ICCPR)
It was also argued that, under wider Internatinoal Law, the ICCPR gave every citizen the right to vote in referendums. The United Nations Human Rights Commission have held in the past that this right applied in Referendums too, even those involving self-determination. The UKSC accepted this argument, but still denied the appeal – why? Because the ICCPR, while the UK is a signatory to the treaty, has not bee incorporated into UK Law i.e. at a domestic level nothing has changed. While in the international sphere the UK has a duty to comply with the ICCPR, at UK/Scottish Level, the Scottish Parliament doesn’t have to and no domestic court can stop it breaking the terms. So while it’s a good point, in reality, nothing is changed.

Common Law Right to Vote
It was then argued that, even if statute didn’t allow prisoners to vote, the UK being a developed liberal democracy, the common law afforded everyone (subject to only essential limitations re. age) the vote anyway as a fundamental constitutional principle. Again this argument was universally rejected.
While it was agreed that the right to vote was a fundamental constitutional principle, it was made clear that this principle was derived from Statute, not common law. From the 1st parliaments to now, the franchise had been extended bit-by-bit by Acts of Parliament (as it seems will happen soon in Scotland) and never by judges. The court saw no reason why it should take such a radical step now, though Lord Hodge did say that were parliament to markedly curtail the franchise, then judges may have the ability to prevent it. This is a bold statement to make given the notion of Parliamentary Sovereignty is still the centre of UK jurisprudence. In the infamous case of AXA v Scottish Ministers, Lord Reed did suggest that in the face of legislation that went against the very concept of natural justice the court may step in, but here Hodge is talking about a defending a statutory concept (the franchise) and not a common law or natural law concept (the rule of law, in the case of AXA). Nonetheless, the prisoners remain voteless.

European Convention on Human Rights (ECHR)
And now I come the main argument – and the first put forward in the case, but last discussed by me because there’s a lot more to say. If any argument was going to succeed, it would be that under Article 3 of Protocol 1 (A3P1) of the ECHR the prisoners had a human right to vote. To understand how the court voted on this (5-2 rejecting the argument), it’s best to have a look at the exact wording of the right:

The High Contracting Parties shall 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.

The words are explicit in that A3P1 concerns “elections” regarding the “choice of legislature”. It had preciously been held, in the UKSC and in the European Court of Human Rights (ECtHR) that elections to the legislature does not include any other kind of vote. This includes presidential elections (which are to the executive) and all referendums, however important they may be. The case offered in support for both these proposition was Niedźwiedź v Poland (2008) 47 EHRR SE6. This concerned a Presidential election and a referendum on Poland’s joining the EU. The ECtHR said that the A3P1 did not apply in these cases because neither were elections to the legislature. So the line of reasoning the majority of the court followed was (put crudely):

  • A3P1 concerns elections regarding the choice of legislature.
  • It’s scope has not been extended to referendums before.
  • The #IndyRef is a referendum.
  • Therefore, A3P1 does not apply in this case.

But what is key here is the fact that 2 UKSC Judges (Lords Kerr and Wilson) dissented from the majority view, Lord Kerr writing the dissenting judgement. They were not entirely convinced that previous UKSC an ECtHR judgements were entirely on point given the nature of the 2014 Referendum. Previously, when the courts had ruled that A3P1 didn’t apply to referendums, they were referendums on EU accession, changing the voting system and constitutional amendment. Never has the court had to consider a situation where the vote was, quite literally, choosing  the legislature: Westminster or Holyrood.
Lord Kerr (the minx) threw Lord Hodge’s words back at him from a case re. Prisoners’ right to vote in the 2011 AV Referendum, where Hodge had said, “the nature of the referendum at issue” suggested that A3P1 could not be applied in that case. Kerr suggested, therefore, that this meant there could be a referendum when the subject was such that A3P1 did apply – and SURELY this was it. He argued that previously the provision didn’t apply because previous plebiscites were “purely consultative [in] character and there was no legal obligation to organise such a referendum.” He said that there was intergovernmental agreement to implement the result of the #IndyRef and the referendum had a solid legal foundation (The Scottish Independence Referendum Act 2013). This, along with the fact that political parties had taken such hard-and-fast positions on the referendum, meant the test (which he believed had been wrongly applied in the past) was passed and, the ECHR applied and the prisoners should have the vote.
As it ended, however, Lords Kerr and Wilson were in the minority and the prisoners did not have a European Right to a vote.

So, in the end, the reasoning was much as was suspected. But, in some ways, the dissent is far more interesting than the decision. Lord Kerr makes an interesting suggestion that not just common law and natural justice rights can be protected by the court from a tyrannical government, but even those firmly and solely based in statute, such as the right to vote. This is a brand new idea (and one I’m not entirely certain of), and it will be interesting to see how this develops in the future (if at all). But the big thing was that, for the first time in it’s history, it was seriously reasoned that the ECHR may, in some very restricted circumstances, give prisoners the right to vote, not only in parliamentary elections (which we know it does) but in referendums as well. Whether this point of view is ever adopted at a European Level, we’ll have to wait till the next #IndyRef.