With the referendum for Scottish independence upcoming, my question has three possible contexts of application: it could be about the position of Scottish prisoners as nationals of the United Kingdom in political elections; it could be about Scottish prisoners under independent Scottish jurisdiction; or it could concern the say of Scottish prisoners in the decision on which of those other two contexts applies after September. This last question is particularly interesting because it opens onto some deeper issues about what it means to be part of the Scottish people at this time of potential constitutional change.
I was prompted to this reflection following a recent group visit to HMP Shotts, at the invitation of prison governor Jim Kerr, to learn about the nature and conditions of prisoners’ work there. (It was an enlightening experience, as Liz Cooper has described in her blog). The topic of voting didn’t come up, but more substantial issues about prisoners’ relations to the wider society did. We were reminded of stark statistics about the sections of society that populate the prisons: about 80% of prisoners in Scotland are functionally illiterate (SPS Figures reported in BBC News, 28.12.12); prisoners, compared to the general population, are 13 times more likely to have been in care as a child, and 70% of prisoners have suffered from at least two mental disorders (from Lisa Mackenzie and Lucy Blackburn, ‘No Votes in Prison’, presentation at University of Edinburgh 2013). It is understandable why Edinburgh University’s Law School head, Lesley McAra, believes that “the Scottish criminal justice system serves to punish poverty, social marginalisation and individual vulnerability as much if not more so than serious offending” (CYP Now, 18.12.12).
A message imparted by our hosts was that the Scottish Prison Service embraces the view that its role in, and on behalf of, our society is to work with prisoners to help them develop the skills and capacities necessary to go back out into the world ready and able to abide by its basic rules and norms. Prisons are a part of society, one of its institutions, and they can fulfill a greater social potential when their aims, ethos and resources are set within a ‘joined up’ approach to wider social issues. Some credit for this enlightened approach may be due to the current Scottish Government’s policies.
So there is something perplexing about the Scottish Government’s stance on prisoner voting. This partly concerns its acquiescence in the view from Westminster that a blanket ban is appropriate for elections in general. It is worth thinking about the reasons for this before turning to questions specifically about the referendum. For it seems at odds with stated aims of making Scotland a ‘beacon of progressive opinion’ given that the UK position is less progressive than the majority of countries in Europe where the norm is complete or partial enfranchisement of prisoners (see UK parliamentary briefing).
Red: blanket ban on voting by convicted prisoners. Yellow: some or all convicted prisoners allowed to vote (Source: Lisa Mackenzie and Lucy Blackburn, ‘No Votes in Prison’, presentation at University of Edinburgh 2013. )
What justifies the UK stance, maintained even in defiance of the European Court of Human Rights? It seems to be taken for granted by the government of the United Kingdom that there is a self-evident – and compelling – answer to the question why prisoners shouldn’t vote. In public statements on the question, UK Prime Minister David Cameron has not detained us with deliberations on the merits of it: “If parliament decides that prisoners should not get the vote then I think they damn well shouldn’t. It should be a national decision taken in our parliament.” (reported in the Guardian, 13 December 2013) Yet this reasoning begs a question, even allowing that the UK is the nation concerned: if the matter is decided by the sovereign parliament, then should or should not prisoners be allowed a part in choosing the representatives who take these national decisions? This question goes to the merits of the case, not merely to the procedural consideration of parliament’s authority to decide.
I confess myself to never having really understood the view that prisoners do not ‘deserve’ or have a right to vote. The view I understand is the one I found to be integral to the philosophy in the management of HMP Shotts: prisoners have forfeited their personal liberty. But for the rest, the jailer’s job in, and on behalf of, our society is to work with prisoners to help them develop the skills and capacities necessary to go back out into the world, when they do, ready and able to abide by its basic rules and norms. There is no reason to assume – as a blanket ban does – that a prisoner forfeits the right to vote on how society as a whole is run: a prison is part of society, and a prisoner is held legitimately in captivity only because of that fact.
Of course, what I happen to think is of little consequence, and even what the enlightened governors of Scottish prisoners might think is not necessarily privileged compared to the views of our elected politicians. Nevertheless, the electoral body as a whole can reasonably expect to know exactly what argument the blanket ban rests on. So is it possible to pin down with some clarity and an appropriate amount of rigour the opposing view?
The UK Government has in fact been obliged to address this challenge, and last year saw the publication of the UK Parliament’s Joint Committee Report on the Draft Voting Eligibility (Prisoners) Bill. In a thorough examination of the question, the committee – with members of several parties from both houses – along with leading academics, found no principled justification for disenfranchisement of prisoners. It considered and rejected claims that disenfranchisement is implied by any of the accepted rationales for incarceration. Indeed, with regard specifically to rehabilitation, it accepted that a right to vote can play a positive part. In its final recommendations, the committee followed a politically more palatable line than its findings warranted, and only went so far as to assert that a total ban is indefensible. The rationale for the compromise options it recommended would appear to follow from political considerations rather than principle or evidence.
The Scottish Government meanwhile has also sought to minimize political controversy. The question for prisoners in a prospective independent Scotland is not at present a live one; prisoner enfranchisement is a matter reserved to the UK parliament, and there is not a public clamour in Scotland to ask what is proposed for after the referendum.
The question of voting rights for the referendum itself, however, may yet be a live one. Alex Salmond was given a free hand by the UK government to allow the vote to prisoners when drafting the Scottish Independence Referendum (Franchise) Act. His decision not to enfranchise prisoners met a legal challenge that was heard in December 2013. The challenge did not succeed. However, the judge’s ruling cannot be said to have closed the door definitively, and an appeal is still possible ahead of the Independence vote. In fact, whether or not the test of this particular case is pressed further, I think there is outstanding a fundamental issue of principle that merits public airing.
The aspect of the judgement that warrants further attention is its finding that even a lifting of the blanket ban on prisoners voting in the Independence referendum (let alone enfranchising all prisoners for it) could not be supported by reference to the European ruling. That ruling, maintained Lord Glennie, the judge in the case, applies only to votes in elections for the legislature, not referenda.
In elaborating the significance of this, the judge’s reasoning was much absorbed by the question whether a referendum might ever be as momentous and integral to a democracy as political elections, for then a right to vote in it might have a similarly fundamental character. However, the precedents he considers are not favourable to affirmation of this, he finds, and nor are the general characteristics of a referendum: ‘a referendum is typically a one-off event dealing with a single issue’, and ‘[n]or has it anything to do with the choice of the legislature’.
A question worth pressing, however, is whether a referendum that will decide for or against a nation’s becoming an independent state is not actually more momentous than a routine political election and (potentially) foundational for (the prospective new) democracy. Surely, it would be grossly reductive to call a decision about whether a nation is to attain its independence a ‘single issue’, and as for choosing a legislature, a decision on Independence potentially affects all such future choices in a structurally profound manner!
Lord Glennie does briefly address the suggestion that this referendum might be qualitatively different from the consultative precedents he cites, but he is concerned not to exceed his powers by speculating on a question that has not yet been expressly ruled on. This is in line with his jugement as a whole in pointing to an absence of any affirmative precedent for granting the petitioners’ challenge, rather than to clear and unequivocal grounds for rejecting it.
Looking at this as an ordinary member of the body politic eligible to vote in the coming referendum, it strikes me as evident that if the judge cannot find a precedent to go on, it is because this independence vote is unprecedented. In fact, there is a sense in which any decision of this kind will always be unprecedented: for it is a decision of a people as to whether to constitute itself as an independent political association, and such a decision gets made once only for any given state.
Before such a decision can be taken, it is logically a pre-requisite that the people who are going to take the decision mutually identify themselves as a people. Who is included and who excluded from membership of this people is a question that stands outside of established politics: the new state that might rule on such questions does not yet exist; existing states do not have jurisdiction over the prospective new state. In ideal principle, the body of the people would consist of all and only those individuals who identify themselves as its members. These abstract points of political philosophy are intended to give a set of bearings on the underlying ethical shape of the question.
The practical necessity of drawing up rules for the franchise in the context of this referendum has thrown up various unavoidable anomalies, particularly around the residency qualification and its imperfect fit with the deeper markers of nationality that have brought us to the point of having this vote. But there would not seem to be any special difficulty in identifying Scottish people residing in Scottish prisons.
If anomalies are unavoidable, injustices are not. The parliamentary committee report on the UK ban on prisoners voting in normal political elections found no merits in the case for that measure. So much the less, I claim, should we expect to find any merit in the exclusion of prisoners from the social body that will decide on independence. We should not forget that the very legitimacy with which the larger part of society deprives a section of it of some important rights and liberties depends ultimately on the constitution being legitimate to those bound by it. People in prison are and will be bound by it. They are a part of the people in the deep but abstract sense I have just alluded to; they are also a part of the people in the very raw and human way that is experienced by all who live and work in prisons day by day; they are also, as we have noted, for the most part, people who have had significant disadvantages in this society since childhood. We need not forget that prisons house people who have done bad things, but if we have any hopes for the future of our society we should also have the practical determination to transform what was once bad into something better. As a senior public servant with very relevant experience recently observed here in Edinburgh, ‘if you want prisoners to be responsible citizens when they leave then what they should be doing, part of being a responsible citizen, is voting’.
There are no votes in prison. Enfranchising inmates would not be electorally popular. But maybe we should think about what responsible citizenship means here on the outside too.
25 March 2014
 Opinion Of Lord Glennie, In Petition Of Leslie Moohan, Gary Gibson And Andrew Urquhart Black Gillon for judicial review of sections 2(1)(a)(i), 2(2)(a) and 3 of the Scottish Independence Referendum (Franchise) Act 2013, 19 December 2013.
 ‘The difficulty for the petitioner, however, is that it has been held consistently both by the Commission and by the European Court of Human Rights that A3P1 applies to voting in elections for the legislature and has no application to voting in a referendum’ (Opinion Of Lord Glennie ). Another of the judge’s reasons for rejecting the case [in paragraph 72] is that to grant it would be tantamount to saying the UK had acted illegally with its blanket ban. Of course, the ECtHR has said exactly that already, and its authority is elsewhere recognized in the judgement.
 Here is the relevant paragraph : ‘The petitioner in this case seeks to gain some assistance from a sentence found in para 33 of the judgment of the court in McLean: “there is nothing in the nature of the referendum at issue in the present case which would lead the Court to reach a different conclusion here”. It is suggested that this shows that the court is open to persuasion that A3P1 might be applicable to a particular referendum in a particular case. A referendum such as that with which the court is presently concerned, which is not merely consultative but is agreed to be binding and decisive on the issue, might now be regarded by the Strasbourg court as being subject to A3P1. I do not consider that that sentence in McLean is a proper basis for effectively ignoring the consistent body of decisions to date to the effect that A3P1 does not apply to protect the right to vote in a referendum. That sentence is doing no more than recognising that, as with every general rule, there is always the possibility of an exception to it.’
 ‘I could only uphold their contention that A3P1 applied to voting in a referendum (as well as to voting in elections for a legislature) if there was a clear and constant line of Strasbourg jurisprudence to that effect; or if, in the absence of a clear and constant line, there were clear pointers in that direction which would enable me to conclude that when the case next came before the court in Strasbourg it would undoubtedly, or at least very probably, come to that conclusion. The domestic court should keep pace but not get ahead.’  ‘It is therefore quite possible – I put it no higher or lower than that – that at some time in the future the Strasbourg court may revisit the ambit of A3P1 and hold that it protects the right to vote not only in elections to the legislature but also in referendums, or at least those which meet certain defined criteria. But it has not done so yet…’