The first of the two Bills providing the statutory framework for the independence referendum has now been passed by the Scottish Parliament. The Scottish Independence Referendum (Franchise) Bill delineates the electorate for the referendum, offering up the Parliament’s vision of “the people” to be entrusted with taking the constitutional choice next year. This exceptional exercise of authority to make a national law on suffrage, devolved by the relevant s30 Order, lends to the measure a constitutional significance separable from its role as a so-called “paving Bill” smoothing the legal path to the referendum. The Franchise Bill is the Parliament’s first experiment with designing an electorate for a national poll. Referendum law-making apart, the franchise remains a reserved matter. The Parliament’s devolved authority over elections is generally limited by the Scotland Act 1998 in ways that preclude amending franchise law for political elections. The Scotland Act 2012 devolves more power concerning the administration of elections, but does not grant authority to legislate on the extent of voting rights within Scotland. In passing the Franchise Bill, the Scottish Parliament has therefore engaged for the first (but perhaps not the last) time with a constitutional task that is usually the sovereign preserve of national legislatures in independent states: legislating on the general principles governing the right to vote in a national poll.
The technical model the Bill employs is to attach referendum voting rights to the Scottish local government franchise (s2(1)(b)(i)). This franchise, which is also the basis of the right to vote in Scottish Parliamentary elections by virtue of the Scotland Act 1998 (s11), was used also in the 1997 devolution referendum. By adopting this franchise, the Parliament has adopted a criterion of residence within Scotland as a precondition of the right to vote. Scots residing in other parts of the UK or overseas may not vote (excepting service voters stationed abroad, for whom provision is to be made by election law to preserve their right to an absent vote). The overseas voting rights for UK Parliamentary elections conferred by UK election law (Representation of the People Acts 1985 and 1989) do not permit expatriates to register as local government electors, and the Franchise Bill makes no adjusted provision to allow this. The exclusion of expatriate Scots from the referendum electorate raises sensitive political and moral issues that were rather muted in the debates during the parliamentary passage of the Bill. This delimitation of voting rights contrasts with the expansive citizenship criteria the Bill employs: all otherwise qualified Commonwealth, Irish or EU citizens resident in Scotland may register to vote (s2(1)(d)). So a migrant worker from Poland, living in Scotland for a few short years is enfranchised, while a Scot spending a similar spell living and working in England is not. This is a consequence of the Scottish Government’s policy choice to adopt wholesale the local government franchise rules rather than designing an entirely separate register of referendum electors. Doing so is an effective way of reducing the administrative costs of the referendum by permitting the use of existing local government electoral registers. It does, however, produce anomalies in the distribution of voting rights that could be perceived as unfair to some of those disenfranchised as a result. Statutory devices could have been framed to permit the extension of the franchise to some expatriate Scots: it would be possible – though admittedly cumbersome and costly administratively – to make legislative provision for individuals living away from Scotland temporarily to register on the basis of a declaration of their intention to return. The UK Parliamentary overseas voting legislation initially employed such a device (Representation of the People Act 1985, s2(3); repealed by the RPA 1989, s4). As the Bill stands, it offers a legislative approximation of a democratic entity probably better termed “the people who live in Scotland” - the careful description used to open the consultation paper Your Scotland, Your Referendum (Scottish Government, Jan 2012) - rather than “the people of Scotland”.
Prisoners, as has been well publicised, are not included in the referendum electorate. Section 3 of the Bill replicates the blanket ban on voting by convicted prisoners in Parliamentary and local government elections maintained in UK law by the Representation of the People Act 1983, s3. The latter has of course been condemned repeatedly by the European Court of Human Rights as a violation of the right to vote protected by Article 3 of Protocol 1, ECHR (A3P1) by reason of its disproportionate nature: Hirst v UK (No. 2) no.74025/01 (2005); Greens & M.T. v UK nos. 60041/08 & 60054/08 (2010); see too Firth and 2,353 Others v UK nos. 47784/09 et al (2013), in which the Court adjourned decision on those prisoner claims pending progress on the UK Government's draft Bill on prisoner voting eligibility. Strasbourg case law is clear and unequivocal: any “general, automatic and indiscriminate” disenfranchisement based solely on the fact of serving a prison sentence breaches the Convention. This principle, set out in Hirst, was affirmed by a Grand Chamber in Scoppola v Italy (No.3) (no. 126/05, (2012)). The Scoppola Court declined the UK Attorney General's invitation to revisit and refine the Hirst principle to tolerate state laws employing a blanket ban. This protective doctrine does not however currently extend to referendum voting rights. The catch here is that A3P1 is regarded by the Court of Human Rights as applying only to elections which are “legislative” in nature. This constraint arises from the Strasbourg Court’s interpretation of the wording of A3P1: it commits the states “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.” The Court has read into this guarantee individual rights to vote and to stand for election. Those rights apply to voting for Parliaments (including the European Parliament, and regional or devolved assemblies having law-making power, such as the Scottish Parliament) but they do not extend to local elections nor to presidential polls. Crucially, the Court of Human Rights has consistently declined to extend their application to referendums: see X v UK No. 7096/75 (1975); Bader v Austria No. 7096/75 (1996); Nurminen v Finland No. 27881/95 (1997); Niedzwiedz v Poland No. 1345/06 (2008). The Court held to this line in the recent admissibility decision of McLean and Cole v United Kingdom (nos. 12626/13 & 2522/12 (2013)), in which two prisoners claimed unsuccessfully a breach of A3P1 by, inter alia, the denial of voting rights in the 2011 AV referendum. The Court observed (at para 33.) that “there is nothing in the nature of the referendum at issue in the present case” that would lead it to depart from its settled jurisprudence concerning the non-applicability of A3P1. This is an interesting qualifier from the Court: it is not dismissing entirely the possibility that a referendum may be of a sort that is deemed to activate the protection of Convention doctrine, although it offers no clues about what sort of referendum might qualify. The Court has never considered a claim about denial of voting rights in an independence referendum (the cases cited above concerned referendums on EU accession): perhaps it is too much of a stretch to imagine it ruling that A3P1 does apply here because the vote concerns "the choice of the legislature" in the sense of which parliament is to enjoy sovereign authority in Scotland in the post-referendum era?
It is now reported that the ban will be challenged by two prisoners by means of judicial review in the Scottish courts on the basis of its alleged incompatibility with A3P1 ("Scottish Independence: Prisoner Vote Ban Challenged", The Scotsman, 6 June 2013). Scottish courts are of course not bound to follow the Strasbourg line in this respect. There is an arguable case that a domestic court ought to consider departing from Strasbourg case law and extend the protection of A3P1 to referendum voting rights. Convention law sets a rather minimal standard for the protection of voting rights. The Court of Human Rights has consistently extended to states a wider margin of appreciation within which to limit the electoral rights than that which applies to other civil and political rights (see Zdanoka v Latvia No. 58278/00 (2006)). This is due to the Court’s concern not to intrude unduly upon the freedom of states to design election laws, a matter of special constitutional sensitivity. The Court’s refusal, so far, to extend the electoral rights to referendums can be read as an aspect of this deference to the states: by confining its reading of A3P1 to “legislative” elections, the Strasbourg Court leaves states an unsupervised freedom to make laws concerning voting in all other sorts of polls, including referendums. The same justification for a restricted reading of A3P1 cannot apply within domestic courts. Referendums are no longer a rarity in the UK: they are becoming a more frequent feature of the electoral landscape. There is a strong argument to be made that this evolution of constitutional practice should be matched by a domestic interpretation of A3P1 which provides constitutional protection to referendum voting rights. A critical difficulty with the Convention right to vote imported into UK law by the Human Rights Act 1998, and provided with supplemental protection in Scots law by the Scotland Act 1998, is that it remains in some senses a quasi-constitutional right. This is certainly so in terms of its scope: few, if any, other constitutional jurisdictions exist where the right to vote protects participation in only some forms of electoral event. The right to vote, as a comparative constitutional concept and instrument of domestic legal practice, is generally allied to principles and doctrines protecting every type of poll. Scottish judges might legitimately decide that it is appropriate to read A3P1 as providing the basis for the protection of referendum voting rights, on the ground that to do so would be to give full (and overdue) effect to its standing as the only provision of UK constitutional law guaranteeing in general terms a right to vote. Election legislation does not offer a broad guarantee of a right to vote; it stipulates technical entitlements to register to vote. The Convention right deserves to be read broadly in order to fill this gap. It warrants domestic protection which secures its status as a full constitutional right capable of embracing arguments about entitlement to vote in referendums. Even if the proposed judicial review were to succeed in winning this extension of A3P1 doctrine to the referendum, it would not necessarily follow that all prisoners would consequently secure referendum voting rights. The Hirst and Scoppola principles would govern. Those principles do not preclude a principled and proportionate ban on prisoner voting, based on for example length of sentence (such a ban was upheld in Scoppola) or severity of the offence.
The Franchise Bill develops the Scottish Government’s commitment to lowering the voting age in elections, and follows prior experiments to do so within devolved competence by setting the voting age at 16 for elections to local health boards and to the crofting commission. The reduction of the age limit for referendum voting rights has raised considerable administrative and logistical challenges concerning the registration of young voters. Those were the reason that the Franchise Bill was split off from the main referendum Bill: the hastened passage of the former was required to ensure enough time to activate the special arrangements for the registration of young voters for which the Bill provides (ss4-9). At the level of policy and principle, the lowered age limit represents an expression of trust in the competence and maturity of older children to vote. Here as elsewhere, the Franchise Bill is a curious mix of liberal suffrage rules and stringent disenfranchisement: it is liberal in terms of the reduced age limit and the inclusion of resident Commonwealth, Irish and EU citizens. It is liberal too in containing no provision disqualifying mentally incapacitated voters, no matter how severe their impairment. This mirrors the situation in all other UK elections following the abandonment of old common law rules by the Electoral Administration Act 2006, s73, which substituted no new incapacity provision. In this respect, the voting rights the Bill creates exceed the minimum requirements stipulated by the Court of Human Rights, which has held that states may disenfranchise some incapacitated voters if this is done in an appropriate and proportionate way (Alajos Kiss v Hungary no. 38832/06 (2010)). These generous suffrage rules contrast with the stringency of the Bill’s blanket ban on prisoner voting and the exclusion of expatriate Scots from the electorate. Scottish judges will no doubt be acutely aware that the extension of the voting rights doctrine attached to A3P1 to the referendum in the forthcoming prisoners’ challenge would open up the possibility too of non-resident Scots arguing that their disenfranchisement flouts human rights principles relevant to the right to vote. Until all legal challenges are settled, and any consequent political adjustments made, the Franchise Bill remains a provisional casting of “the people” licensed to vote on 18 September next year.
Heather Green is a senior lecturer in the School of Law at the University of Aberdeen.