Ruling on votes for prisoners could postpone 2007 Holyrood elections
"This is utter nonsense. The European Convention on Human Rights should be about protecting people from cruelty and harm, and ensuring equality for law-abiding citizens, not giving the franchise to those who do not respect the law and commit serious offences." Kenny MacAskill, SNP justice spokesman
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LEGAL action which could stop the Scottish parliamentary elections in May is being prepared, after a judicial ruling yesterday declared that a ban on prisoner voting breaches European human rights laws.
Last night, lawyers warned that the country's 7,000 prisoners would be entitled to a multi-million-pound damages claim over their loss of franchise.
Three Court of Session judges in Edinburgh ruled yesterday that the ban on prisoners voting breached the European Convention on Human Rights (ECHR) and they reprimanded the government for delays which will mean inmates will not be given the vote before the Holyrood elections on 3 May.
Lawyers representing 30 prisoners said the government's failure to remedy the problem could cost the taxpayer millions of pounds, and The Scotsman has learned that the lawyers are now seeking an interdict to prevent the Holyrood elections from going ahead.
The move has led to condemnation of the government over its handling of the ECHR and allowing a situation to arise in which law-abiding citizens are having to pay out for legal actions by convicted prisoners.
A blanket ban on inmates taking part in ballots was declared unlawful by the European Court of Human Rights following a case in England in 2005 and Westminster vowed to change the system, but that has not yet happened.
An action plan was drawn up by the government, but the court heard yesterday that the proposed timetable was allowed to fall way behind schedule, and ministers have now conceded that changes will not be made before May.
Yesterday's case was raised by William Smith, a 55-year-old convicted heroin dealer barred from voting in the last Scottish Parliament elections.
He is no longer in prison and so is now eligible again to vote. But the judges yesterday made a formal declaration that denying prisoners the right to vote is incompatible with the ECHR.
"Significantly, the action plan makes no mention of the Scottish parliamentary election in May 2007," observed Lord Abernethy, sitting with Lords Nimmo Smith and Emslie.
"We cannot refrain from commenting that it is unfortunate that the urgency of the situation was apparently only appreciated so late in the day.
"It is clear that the timetable in the action plan ... slipped badly."
Following the decision Tony Kelly, the lawyer representing those prisoners set to sue the government, is taking the action to try to stop the Scottish elections. He said: "Two years ago the European Court said prisoners should have the vote. The government has done nothing ... and they have totally overlooked the Scottish elections."
It is expected the interdict will be lodged at the Court of Session by the end of February, although experts believe that it is extremely unlikely to be successful.
Last night, Mr Smith said the news of his court case was "fantastic". Speaking from his home in Hamilton, Lanarkshire, he claimed that he had taken his claim so far only to prove he had "rights".
He said: "Prisoners have worries just like everybody else.
"I started this fight five years ago when I was in Glenochil for drug offences. I was caught with heroin with intent to supply.
"I wrote to the local MP at the time whose constituency covered Glenochil but he told me that there was nothing he could do for me or for any of the other prisoners.
"The constituency at that time was marginal, but if the prisoners in Glenochil had been allowed to vote they could have put the MP out. Even after I left prison I decided I would continue my fight to get equal voting rights for those who are in prison.
I wasn't in it for money. I just wanted my rights."
After yesterday's case, Kenny MacAskill, the SNP's justice spokesman, said: "This is utter nonsense. The European Convention on Human Rights should be about protecting people from cruelty and harm, and ensuring equality for law-abiding citizens, not giving the franchise to those who do not respect the law and commit serious offences."
Margaret Mitchell, justice spokeswoman for the Scottish Conservatives, said: "We're now seeing more legislation working in favour of the perpetrators of crime. If you break the law and go to prison, you should lose your right to vote."
John Scott, chairman of the Howard League for Penal Reform in Scotland, called the situation "an own-goal for New Labour". He said: "This will affect every prisoner in Scotland and in any contested court case, the costs can spiral out of control. They were warned about this for so long, and the timetable has been left to slip.
However, the Scotland Office minister, David Cairns, said:
"We don't anticipate prisoners would be able to find sufficient grounds to successfully challenge the legality of elections."
Slopping-out claims cost public 58m
THE possibility of compensation claims over prisoner voting comes as the Executive is paying out over another breach of the ECHR - slopping-out.
In January 2001 ministers were warned that a failure to tackle slopping-out in Scotland's jails would lead to multi-million pound claims, but many dismissed the prospect of prisoners winning cash from the Executive over the issue.
However in August 2002, 60 prisoners at Barlinnie, the country's biggest jail, launched legal action against the government, claiming slopping-out contravened their human rights.
Two years later, a landmark legal judgment ruled slopping-out breached a prisoner's human rights, paving the way for a potential damages bill running into millions.
Robert Napier, a prison inmate, won 2,450 in damages after taking the Executive to court. His counsel told the court his cell was "grossly inadequate" and compared conditions to those at Pentonville Prison, London, in 1841.
But ministers insisted on appealing the decision, despite warnings that it was not compatible with human rights' legislation.
Repeated government blunders have left the public facing a rocketing compensation bill, which has risen by nearly 10 million in the past year to over 58 million.
Q: What is the history of the ban on prisoners voting?
A: Britain's ban on giving prisoners the vote dates back to the 19th century. Linked to the notion of "civic death", the Forfeiture Act of 1870 denied offenders their rights of citizenship.
Q: Who was the first prisoner to challenge the ban on voting?
A: Following a case launched in 2001, the European Court of Human Rights in Strasbourg ruled in 2005 that preventing the English former prisoner John Hirst from casting a vote had breached his right to free elections.
Q: What has Westminster done since ministers pledged to give prisoners the vote?
A: Very little, according to critics, who claim ministers have simply dragged their heels and overlooked the Scottish elections.
Q: What was the catalyst for change in Scotland?
A: A Scottish prisoner, William Smith, launched a legal action, applying to be registered for the Holyrood election of 2003.
Q: What led John Hirst to begin his campaign?
A: Hirst began his legal challenge because he believed there was no real way for prisoners to effect change.
Q: Could anything be done to give prisoners the vote before the May elections?
A: Scottish lawyers claim Westminster could fast-track emergency legislation through parliament.
Q: What are the arguments against prisoners voting?
A: Critics argue that the loss of the right to vote is an important part of our justice system, regarded as a punishment for those committing a crime.
Q: What are the arguments in favour of allowing prisoners the vote?
A: Supporters say it helps with rehabilitation and keeps them in touch with society and their role as citizens within the wider community.