Moohan and another v The Lord Advocate

Article 3 of Protocol No 1 to the European Convention on Human Rights protects participation in periodic elections for membership of a legislature. It does not extend to a referendum, even one determining independence or the constitutional allocation of legislative power.

Article 10 does not confer a wider voting right. EU law contains no equivalent right applicable to such a referendum. Unincorporated treaty obligations do not create domestic rights or restrict the Scottish Parliament’s legislative competence.

Although voting is a constitutional right, the franchise has historically been defined by statute. The common law cannot establish universal and equal suffrage where that would supplement or contradict Parliament’s statutory rules.

Two convicted prisoners sought judicial review of the Scottish Independence Referendum (Franchise) Act 2013. Its adoption of the local-government franchise excluded convicted prisoners from voting in the Scottish independence referendum.

The Outer House refused their applications: 2014 SLT 213. The First Division refused their reclaiming motion: [2014] CSIH 56; 2014 SLT 755. The prisoners appealed to the Supreme Court.

They argued that the exclusion was outside the Scottish Parliament’s legislative competence because it infringed Convention rights, EU law, the International Covenant on Civil and Political Rights, a common-law right of universal suffrage and the rule of law. The central issue was whether any of those sources invalidated the referendum franchise.

1. By a majority, the appeal was dismissed. Lord Hodge delivered the principal judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agreed. Lord Kerr and Lord Wilson dissented on the application of article 3 of Protocol No 1.
2. Article 3 of Protocol No 1 to the European Convention on Human Rights concerns free periodic elections for the choice of a legislature’s membership. Its ordinary meaning, including the requirements for elections “at reasonable intervals” and for a choice of “the legislature”, does not cover a referendum. A consistent line of Strasbourg decisions also excluded referendums, including referendums affecting legislative powers. The importance of the Scottish independence referendum and the political commitment to respect its result did not alter that conclusion.
3. Article 10 was the general provision concerning freedom of expression, while article 3 of Protocol No 1 was the specific provision governing voting. Article 10 therefore conferred no wider right of electoral participation.
4. The referendum franchise did not infringe EU law. A vote for independence would not itself have determined nationality or withdrawn EU citizenship; further negotiations and legislation would have been necessary. In addition, EU law contained no voting right equivalent to that recognised under article 3 of Protocol No 1.
5. Article 25 of the International Covenant on Civil and Political Rights was wider than article 3 of Protocol No 1 and could extend to referendums. It did not, however, assist the interpretation of the differently worded Convention provision. As an unincorporated treaty obligation, it neither created domestic rights nor limited the Scottish Parliament’s legislative competence.
6. The common law recognises voting as a basic or constitutional right, but it has not developed a right of universal and equal suffrage from which every limitation must be statutory and proportionate. The franchise has for centuries been regulated by legislation. The courts cannot supplement or override the statutory rules, including the incapacity imposed on convicted prisoners by the Representation of the People Act 1983. Lord Hodge left open the exceptional and remote possibility of common-law intervention against legislation abusively designed to entrench a parliamentary majority.
7. The rule of law supplied no separate universal right to vote and could not incorporate unincorporated treaties indirectly. The Scottish Parliament had lawfully established the referendum franchise within the authority conferred by the Scotland Act 1998.
8. Lord Kerr, with whom Lord Wilson agreed, would have held that article 3 of Protocol No 1 extended to this secession referendum. In their view its object, purpose and evolutive interpretation protected participation in a vote determining the identity and constitutional status of the legislature. They considered that the Strasbourg referendum authorities were not directly determinative.

1. United Kingdom Supreme Court: By a majority, dismissed the prisoners’ appeal: [2014] UKSC 67.
2. Inner House of the Court of Session, First Division: Refused the reclaiming motion: [2014] CSIH 56; 2014 SLT 755.
3. Outer House of the Court of Session: Lord Glennie refused the applications for judicial review: 2014 SLT 213.