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Legality of May elections challenged

25 January 2007

Three Court of Session judges have ruled that denying the prisoners the right to vote is incompatible with human rights.

In a decision issued yesterday, Lords Abernethy, Nimmo Smith and Emslie ruled that section 3(1) of the Representation of the People Act 1983, which contains the prohibition, is incompatible with article 3 of the First Protocol to the European Convention on Human Rights.

The case was brought by William Smith, who was serving a five year sentence for drug dealing at the time of the 2003 Scottish Parliament elections and was refused the right to have his name on the voters roll.

Solicitor Tony Kelly for Mr Smith said after the ruling that he intended to seek an interim interdict to prevent the May elections elections going ahead without prisoners being entitled to vote. If this failed, he would be seeking compensation of up to £1,000 per prisoner disabled from voting, the amount ruled appropriate in a recent ruling by the European Court of Human Rights.

Only the Westminster Parliament can decide that prisoners are allowed to vote. The Department for Constitutional Affairs has been consulting on the possibility of giving certain classes of prisoners the vote, but this is not due to finish until March, which would not allow time to amend the law before the Scottish elections.

The court rejected a challenge by the Scottish Ministers that, as it was technically sitting as the Registration Appeal Court rather than the Court of Session, it had no power to make a declaration that the statutory ban on prisoners voting was incompatible with the Human Rights Convention. "The expression 'Court of Session' may properly be construed as extending to any court in Scotland consisting of judges of the Court of Session and sitting in their capacity as such", the court ruled.

The court went on to rule that it should make a formal declaration of the incompatibility, as the UK Government had accepted the European decision in Hirst in 2005, also brought by a UK prisoner, but had failed to bring forward new proposals in line with a timetable prepared after the decision. It had also failed to take account of the imminence of the Scottish elections.

SNP and Conservative politicians protested at the Human Rights Convention being used once again to further prisoners' rights rather than those of their victims.

However, the Scotland Office said it did not believe that prisoners would be able to successfully challenge the legality of elections.

The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSIH9.html .