Scottish Human Rights Law Group

In X v Scottish Ministers [1] the question with which the Inner House was faced was the effect which this declaration of incompatibility had upon the validity of actions of the Scottish Ministers, which resulted in individuals becoming subject to this Convention incompatible automatic disenfranchisement.   The petitioner, who had been released on licence was recalled to prison to serve the remainder of his original sentence after he was charged with drugs offences allegedly committed during his release on licence.  This decision to recall him was a decision of the Scottish Ministers; but with his recall to prison and resumption of his detention as a convicted prisoner, the petitioner again became subject to the Convention incompatible automatic disenfranchisement provisions of Section 3 of the 1983 Act.  It was argued on behalf of the petitioner that, but for the decision of the Scottish Ministers his Convention rights to vote would not have been violated.   Accordingly, the recall decision of the Scottish Ministers, which foreseeably and inevitably resulted in the Convention incompatible disenfranchisement of the petitioner, was said to be ultra vires as a result of the operation of Section 57(2) of the Scotland Act, which provides that the Scottish Ministers should have no power to do any act so far as the act is incompatible with any of the Convention rights. In rejecting this argument, the Inner House observed that in their opinion the act of the Scottish Ministers respondents in recalling a convicted person was far removed from the right to vote in free elections and that Protocol1 Art. 3 was not engaged by the act of the Scottish Ministers in revoking the petitioner’s licence, and that act, in turn, was not incompatible within the meaning of s. 57(2) of the Scotland Act 1998.

This case is available here.

Aidan O’Neill