Moohan and another v The Lord Advocate

The Supreme Court by a majority dismissed the appellants' challenge to the Scottish Independence Referendum (Franchise) Act 2013. The majority held that article 3 of Protocol No.1 to the European Convention on Human Rights (A3P1) is directed to free elections for the choice of a legislature and does not, on its proper interpretation, extend to a one‑off referendum of the kind organised under the Franchise Act. The court also rejected related arguments that the Act was ultra vires by reason of incompatibility with article 10 ECHR, EU law, the ICCPR, a freestanding common‑law right to universal suffrage, or the rule of law. The judgment relies in particular on section 29 of the Scotland Act 1998, the Representation of the People Act 1983 (sections 2(1)(b) and 3(1)) and Strasbourg jurisprudence such as X v United Kingdom, McLean & Cole v United Kingdom and Hirst v United Kingdom (No 2).

This appeal concerned applications for judicial review of the Scottish Independence Referendum (Franchise) Act 2013 which set the franchise for the independence referendum by reference to local government franchise rules in the Representation of the People Act 1983 and extended the franchise to 16 and 17 year olds.

The appellants were two convicted prisoners detained on the date of the referendum who sought a declaration that convicted prisoners have the right to vote in that referendum. They challenged the Franchise Act on multiple grounds:

• incompatibility with article 3 of Protocol No 1 to the ECHR (A3P1);
• incompatibility with article 10 ECHR;
• incompatibility with EU law;
• breach of obligations under the ICCPR;
• contravention of a common‑law principle of universal suffrage;
• incompatibility with the rule of law.

Procedural history: the Lord Ordinary (Lord Glennie) refused the applications in the Outer House (opinion 19 December 2013), the First Division refused the reclaiming motion (2 July 2014) and the appellants appealed urgently to the Supreme Court which heard the appeal on 24 July 2014 and dismissed it the same day; reasons were provided in the present reserved judgment.

The court framed the principal legal issues as whether A3P1 or other international or domestic legal norms limited the competence of the Scottish Parliament under section 29 of the Scotland Act 1998 to enact the Franchise Act provisions disenfranchising convicted prisoners.

The majority reasoning was:

• A3P1's ordinary meaning and Strasbourg case law limit it to elections concerning the choice of a legislature; the phrase "at reasonable intervals" and the notion of "elections" point away from one‑off referendums; Strasbourg decisions up to McLean & Cole treat referendums as generally outside A3P1.
• Article 10 does not offer a broader right of participation where A3P1 applies; it is lex generalis and cannot override A3P1 as lex specialis.
• EU law did not supply a substantive objection: the referendum result would not itself determine citizenship or EU law rights and the Court had held recently that EU law does not independently create a voting right in this context.
• The ICCPR (including article 25) and other international instruments do not, unless incorporated into domestic law, fetter the Scottish Parliament's legislative competence under the Scotland Act; treaty obligations are not self‑executing domestically.
• The common law has not developed a freestanding constitutional right of universal and equal suffrage that would override statutory drafting in the 1983 Act.
• The rule of law did not import a separate universal franchise right and the Franchise Act was within the powers conferred by Schedule 5, part I, para 5A of the Scotland Act 1998.

The court therefore dismissed the appeal. The judgment notes that some members of the court (not the majority) would have reached a different conclusion on A3P1.

Appeal dismissed. The majority concluded that A3P1 is properly read as protecting participation in periodic elections for the choice of a legislature and does not extend to the one‑off Scottish independence referendum; related Convention, EU and international law arguments, and claims based on a developed common‑law right to universal suffrage or the rule of law, also failed to establish that the Franchise Act was outside the legislative competence of the Scottish Parliament.

Outer House (Lord Ordinary Lord Glennie) refused the judicial review applications (opinion 19 December 2013 (2014 SLT 213)); First Division of the Inner House refused the reclaiming motion (2 July 2014 (2014 SLT 755)); expedited appeal to the Supreme Court heard 24 July 2014 and appeal dismissed (this judgment) (On appeal from: [2014] CSIH 56).