PRISONERS are to launch a legal challenge against the independence referendum unless plans for a blanket ban on them having a say in the historic vote are changed.
A group of serving prisoners have instructed lawyers to begin a case against Scottish ministers after last week’s referendum bill declared that no-one in jail on 18 September next year should be given a vote.
Leading human rights lawyer Tony Kelly claims the explicit ban runs counter to case law, and will mount a challenge against the bill if MSPs decide to pass it unaltered later this year.
Separately, prison rights groups have written to ministers saying that, at the very least, prisoners serving short-term sentences should be allowed to vote.
The prisoner vote issue has dogged the UK and Scottish governments in recent years, after the European Court of Human Rights ruled that the UK’s current blanket ban on prisoner voting in elections breached the convention.
However, as the rights only relate directly to elections, not referendums, Scottish ministers argue there is no case for prisoners getting the vote next year. First Minister Alex Salmond and Justice Secretary Kenny MacAskill have also declared that, on principle, prisoners should not be allowed a vote.
That stance now looks likely to be tested in court. Kelly told Scotland on Sunday last night that he had received instructions from several prisoners to act on the matter. He said: “Leaving aside the ECHR, the referendum to choose what happens to the future of the country is as important as it gets.
“On the face of the bill there is a clause which says that convicted prisoners are not allowed to participate. There is no explanation for that clause. What is the justification for excluding those who are to be incarcerated? I would like to see what that is.”
He added: “If you look at the case law, and you look at the justifications for doing this, in every attempt the justification has fallen foul before the courts. There will be a challenge if the bill stays as it is at present. I can’t see the justification that will preclude a challenge.”
A potential challenge could throw the referendum process into doubt with just 18 months to go to the polls. In 2007, the Scottish elections of that year were called into question after the Court of Session in Edinburgh ruled that the ban on prisoners voting was incompatible with their human rights.
Legal figures in Scotland have already begun a debate over the legality of the referendum bar on prisoner voting.
Paul Reid, an advocate with Ampersand Stable, said: “It is unfortunate that the Scottish Government seeks to continue the blanket disenfranchisement of prisoners in relation to the referendum vote.
“But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation.”
John Scott, QC, another leading human rights lawyer and the chair of the Howard League of Penal Reform, added: “We are already out on a limb in terms of not allowing prisoners the vote.
“It is disappointing that the Scottish Government isn’t taking the opportunity to amend that.”
A submission by the Howard League, the Prison Reform Trust and SACRO adds: “There is an immediate opportunity with this Bill for Scotland to strike a distinctive course which brings us closer to the practice in other developed European democracies, rather than automatically following the model set by Westminster.
“We believe the question of voting rights for prisoners in the referendum is more, rather than less, acute than in general elections.”