Moohan & Anor v The Lord Advocate [2014] UKSC 67

Two convicted prisoners challenged the Scottish Independence Referendum (Franchise) Act 2013, which barred prisoners from voting in the 2014 independence referendum. The Supreme Court dismissed their appeal, holding that A3P1 ECHR, EU law, the ICCPR, and the common law did not confer a right to vote in the referendum.

Facts

The appellants, Leslie Moohan and Andrew Gillon, were convicted prisoners who would remain detained on 18 September 2014, the date of the Scottish independence referendum. They sought judicial review of the Scottish Independence Referendum (Franchise) Act 2013 (the ‘Franchise Act’), an Act of the Scottish Parliament, which based the referendum franchise on that for local government elections under the Representation of the People Act 1983. Sections 2(1)(b) and 3(1) of the 1983 Act disenfranchise convicted prisoners. The Outer House (Lord Glennie) and the First Division of the Inner House refused their applications. An expedited appeal was heard by the Supreme Court on 24 July 2014, with the appeal dismissed the same day and reasons given on 17 December 2014.

Issues

The appellants argued that the Franchise Act was outside the legislative competence of the Scottish Parliament on six grounds: (1) incompatibility with Article 3 of Protocol 1 (A3P1) of the ECHR; (2) incompatibility with Article 10 ECHR; (3) incompatibility with EU law; (4) breach of the International Covenant on Civil and Political Rights (ICCPR); (5) incompatibility with a common law principle of universal suffrage; and (6) contravention of the rule of law.

Arguments

Appellants

Mr Aidan O’Neill QC submitted that the blanket disenfranchisement of prisoners was ultra vires the Scottish Parliament. He relied on Hirst v UK (No 2) and Scoppola v Italy (No 3), arguing that A3P1 should extend to a constitutional referendum transferring powers between legislatures. He relied on McLean and Cole v UK, particularly on the phrase ‘nothing in the nature of the referendum at issue’, suggesting Strasbourg might apply A3P1 to certain referendums. He further argued that Article 10 ECHR, EU law (given potential loss of EU citizenship following independence), Article 25 of the ICCPR, and a common law right of universal suffrage all invalidated the ban.

Respondent and Intervener

The Lord Advocate and Advocate General for Scotland argued that A3P1 is confined by consistent Strasbourg jurisprudence to elections to the legislature and does not extend to referendums. They submitted that EU law does not confer a right to vote (relying on McGeoch), that unincorporated treaties do not create domestic rights, and that no common law right of universal suffrage exists.

Judgment

A3P1 ECHR

Lord Hodge (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agreed) held that the ordinary meaning of A3P1, applying Article 31(1) of the Vienna Convention, requires periodic elections to a democratically elected legislature and does not extend to referendums. The reference to elections ‘at reasonable intervals’ indicated referendums were not contemplated. A consistent line of at least 12 Strasbourg decisions, including X v UK, Ž v Latvia, Niedzwiedz v Poland, and McLean and Cole v UK, confirmed that A3P1 does not apply to referendums. The court found no material distinction between accession and secession, both involving reallocation of legislative power. The Edinburgh Agreement did not alter the analysis.

Article 10 ECHR

Article 10 does not confer a wider right to vote than A3P1, which is the lex specialis. The claim failed.

EU Law

A ‘yes’ vote would not automatically determine citizenship, which would depend on subsequent negotiations and legislation. Rottmann v Freistaat Bayern was distinguishable. Further, McGeoch established that EU law does not incorporate any right to vote. The EU law challenge failed.

ICCPR

Article 25 ICCPR has a wider scope than A3P1, but the ICCPR is an unincorporated treaty. Applying JH Rayner (Mincing Lane) Ltd v DTI and In re McKerr, treaties which are not incorporated into domestic law do not create domestic rights. Section 126(10) of the Scotland Act excluded international obligations (other than EU law and Convention rights) from the limits on legislative competence; instead section 35(1) provides a political mechanism through the Secretary of State. The ICCPR challenge failed.

Common Law Right to Vote

Although the right to vote is a constitutional right (Watkins v Secretary of State for the Home Department), the franchise has historically been the creature of statute. Courts should not develop the common law to contradict statutory provisions (In re McKerr). No common law right of universal suffrage exists that could override sections 2(1)(b) and 3(1) of the 1983 Act. Lord Hodge left open the possibility that, in extreme circumstances where a parliamentary majority abusively sought to entrench its power by curtailing the franchise, the common law might intervene, but that question did not arise.

Rule of Law

The rule of law adds nothing separate and cannot subvert the dualist approach to international treaties. The Franchise Act was enacted in accordance with the rule of law under powers conferred by Schedule 5, Part I, para 5A of the Scotland Act 1998.

Dissenting Views

Lord Kerr and Lord Wilson dissented on the A3P1 issue. Lord Kerr considered that A3P1, interpreted in light of its object and purpose and article 31 VCLT, and read together with Article 1 ICCPR (self-determination), should extend to a referendum determining the choice of legislature. Lord Wilson agreed, criticising the retreat from and continuing application of the Ullah principle where no directly relevant Strasbourg authority exists. Lady Hale, while acknowledging the difficulty, concluded that as A3P1 does not require a referendum to be held, its incidental voting rights do not attach.

Implications

The decision confirms that A3P1 ECHR, as currently interpreted, is confined to periodic elections to legislatures and does not extend to referendums, including constitutional referendums such as the Scottish independence referendum. It reaffirms the dualist nature of the UK constitution: unincorporated international treaties, including the ICCPR, do not create enforceable domestic rights and do not limit the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998 (save via section 35’s political mechanism).

The judgment also confirms that there is no common law right of universal suffrage capable of overriding statutory rules on the franchise, given the historical statutory basis of the franchise. Significantly, however, Lord Hodge left open the possibility that the common law, informed by principles of democracy and the rule of law, might intervene where a parliamentary majority sought abusively to entrench its power by curtailing the franchise – an important, if narrow, qualification.

The case matters to constitutional lawyers, prisoners’ rights advocates, and those concerned with the scope of Convention rights and the reach of unincorporated international obligations in devolved contexts. It illustrates both the limits of A3P1 and the willingness of some Justices (Lords Kerr and Wilson) to depart from a strict Ullah approach where Strasbourg has not directly addressed an issue. It should be read alongside Hirst (No 2), Chester and McGeoch as part of the developing jurisprudence on prisoner voting, while noting that its ruling on referendums remains distinct from the position on elections to legislatures.

Verdict: The appeal was dismissed. The Scottish Independence Referendum (Franchise) Act 2013 was held to be within the legislative competence of the Scottish Parliament and its exclusion of convicted prisoners from voting in the referendum did not violate A3P1 or Article 10 ECHR, EU law, the ICCPR, the common law, or the rule of law. Costs were awarded against the appellants as assisted persons but their liability was modified to nil.

Source: Moohan & Anor v The Lord Advocate [2014] UKSC 67