25January
Further to yesterday's article about the legal status of the Scottish elections, a closer reading of the Human Rights Act (you know, the actual law), makes it quite clear that a declaration of incompatibility does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given.
Though the Scottish court has deemed the legislation incompatible with the ECHR, this appears little more than a marker of judicial impatience at the way the Ministry of Justice has relegated the matter of votes for prisoners. It's on the back-burner in an unvisited alcove behind a locked steel door where no-one ever visits except to check that the building hasn't fallen down.
There is a potential conflict of supremacy between the provisions of the Human Rights Act, which enshrined the ECHR in statute, and the Scotland Act, the rules of devolution. The Scotland Act states,
* section 29 provides that an Act of the Scottish Parliament may not include provisions which are incompatible with Convention rights, as they are defined in the Human Rights Act; and
* section 57(2) provides that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, which would be incompatible with Convention rights.
The rules governing elections to the Scottish Parliament come from the Representation of the People Act, a law that's come from Westminster (a Reserved Matter, in the parlance of devolution) and hence not subject to the human rights provisions of the Scotland Act. Even the new laws instating STV for local elections depends on the ROPA, and hence its results are not subject to challenge in this way.
The Human Rights Act also states, quite clearly, that no unlawful act arises if the public authority could not have acted differently as a result of primary legislation. This section would extinguish any realistic possibility of setting aside the results of elections carried out according to the relevant rules. Unless, we suppose, the prisoners concerned wished to challenge this "status quo" stipulation as itself being incompatible with their rights. It's a line of attack, and probably something to leave eminent lawyers pining for the simplicity of the Schleiswig-Holstein question, but we reckon it's unlikely to succeed.
It is far more likely is that the election will continue. And it's more likely that a commentator will gratuitously invoke the catchphrase of a 90s game show than any of the results are vacated for reasons related to votes-for-prisoners. How much more likely? Over to John Anderson. Contenders ... ready! Swingometers ... ready!
