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Controversy behind the Scottish Referendum: Prisoners’ Voting Rights

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

The referendum on Scottish independence will be held on Thursday 18th September, as provided for under the Scottish Referendum (Franchise) Act 2013 (“the 2013 Act”). The referendum provides an opportunity for Scottish citizens to express their voice as to whether they should be a nation independent from the United Kingdom and thusgain domestic legislative and political power. However, sections 2 and 3 of the 2013 Act came under fire recently when detainees Leslie Moohan and Andrew Gillon, who are both serving life sentences for the murder of David Redpath and Gary Johnstone respectively, brought a claim before the Outer Chamber of the Scottish Court of Session. The claimants submitted that the ban on prisoners’ voting rights in the referendum set out in the aforementioned sections of the 2013 Act infringes their human rights contrary to the protections afforded to them under Article 10 (the right to freedom of expression) and Article 3 of Protocol 1 (the positive obligation on States to provide free and fair elections) of the ECHR. In addition, it was argued that Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which gives every citizen the right to ‘vote and be elected at genuine periodic elections’ was similarly infringed, and, closer to home, that the ban breaches a fundamental, common law constitutional right to vote.

Section 3 of the 2013 Act sets out that:

A convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person...

Specific aspects of section 2 provide additional hurdles to the blanket ban imposed on detainees.  Section 2(1)(b)(i) requires eligible voters to be registered in the local electors register, but detainees cannot be registered by virtue of the Representation of the People Act 1983; the latter ban also takes away legal eligibility to vote as required under section 2(2)(a) of the 2013 Act. Finally, section 2(2)(b) clarifies, perhaps unnecessarily, that the legal right to vote does not exist if it is taken away by section 3 of the same Act. None of these provisions however take into consideration the circumstances of detainment, including how long a prisoner’s sentence is, or how serious their crime.

Moohan and Gillon’s case was initially dismissed in the Outer House of the Scottish Court of Session by Lord Glennie with the reasons behind the decision detailed in his opinion, given on the 19th of December 2013. The Court of Session, which sits in Parliament House in Edinburgh, acts as Scotland’s highest civil court. It is both a court of first instance and a court of appeal, with decisions only subject to appeals to the Supreme Court of the United Kingdom.

Part of the reasoning set out in Lord Glennie’s opinion is that that the Scottish court, and indeed UK courts in general, are under an obligation to properly take into account Strasbourg jurisprudence. This argument was developed on the basis of the principle set out by Lord Bingham in the case of R v Special Adjudicator ex parte Ullah [2004] 2 AC 323 at para [20], namely that when giving effect to convention rights under the HRA, the 'duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less'. Lord Glennie however proceeded to attract special attention to Lord Brown’s modification of the statement in R (Al-Skeini) Secretary of State for Defence [2008] 1 AC 153 at para [106]: 'no less but certainly no more', explaining his emphasis on the basis that:

... [I]f the domestic court misinterprets the Convention and interprets it more generously than the Strasbourg court has done or would have done, the mistake will stand in that member state (though not in others), since the member state cannot itself go to Strasbourg to have it corrected. By contrast, however, if the domestic courts have interpreted the Convention too narrowly, the aggrieved individual can seek to have that decision corrected in Strasbourg.

Lord Glennie relies on an ambiguity in Strasbourg jurisprudence on the issue to suggest that a positive judgment in the case of Moohan and Gillon would go beyond the limits of the previous Strasbourg decisions, which may be permissible in rare cases, but 'for the present, the approach in Ullah and Al Skeini holds good'.

The ambiguity at play lies in what was identified as the difference between a regular election and a referendum in relation to Article 3 of Protocol 1 of the ECHR. The Article places an obligation on the High Contracting Parties to hold 'elections at reasonable intervals to ensure the free expression of the opinion of the people in the choice of legislature'. Yet referendums were defined in Lord Glennie’s opinion as one off events, 'dealing with a single issue... not held at regular intervals' or having 'anything to do with the choice of legislation'. Lord Glennie then went on to point out that there is no clear Strasbourg jurisprudence on the legality of this type of blanket ban in relation to referendums. Indeed, in the case of Hirst v UK (no. 2) 19BHRC 546, [2005]ECHR 681 the UK’s blanket ban on prisoners’ voting rights was declared contrary with the convention right protection in Article 3 Protocol 1 on the grounds that it was a disproportionate application of the digression member states are afforded in relation to such bans. However, in considering the ban to be only an infringement of Article 3 of Protocol 1, the ECtHR’s decision was silent on the issue of referendums. Although the application in Hirst involved a claim that Article 10 rights had been infringed, similarly to the case of Moohan and Gillon being discussed here, the ECtHR did not deem it necessary to deal with the article separately, as it considered it irrelevant to the question being answered (paragraph 89), thus allowing the judgement to concentrate only on elections held regularly. Accordingly, the decision of the Court of Session to not overturn the ban balanced solely on a very specific technical difference. 

With regards to the right to suffrage being a common law constitutional right, the idea was dismissed on the basis that the right was extended over time through various Acts of Parliament which were the embodiment of political actions rather than a recognition of a constitutional right. This idea was further explored in the reclaiming motion in the Inner House of the Scottish Court of Session, based on earlier precedent, where it was explained (paragraphs 27-30) that the terms ‘constitutional’ and ‘fundamental’ may be used interchangeably with other terms to describe rights derived from statute that have become so important over time that Parliament must explicitly deal with the consequences of interfering with them. The Court of Session concluded that although it is a right of significant importance, the right to vote is not an inalienable constitutional right in domestic law. That said, Parliamentary sovereignty remains an essential part of UK law and is even incorporated into the HRA to the extent that Parliament retains the ability make acts of Parliament that are incompatible with human rights, the only lasting repercussion being that they are held accountable by the electorate. In the context of prisoners’ voting rights this means that a blanket ban is legally permissible even if it may be morally questionable.

On the aspects of international and European law, the Inner House of the Court of Session agreed with all of the points made in the first instance opinion, essentially and rather unsatisfactorily, refusing to overturn the ban mainly on the grounds that Article 3 of Protocol 1 of ECHR does not explicitly refer to referendums. Notably, there was no discussion of whether a referendum, by virtue of being a one-off, stand-alone election on an issue is not more important than a regular election, which would be a strong argument in favour of overturning a blanket ban. Instead, the reclaiming motion was dismissed, leading the appellants to take the case to the Supreme Court.  

On 24th July 2014, after a daylong hearing, the appeal in the case of Moohan and another v The Lord Advocate was dismissed with the Supreme Court judges reportedly issuing 'an unusually quick summary decision less than an hour after hearing final oral submissions on the case'. The full judgment providing the reasoning behind this decision is still due to be released, but it is highly unlikely that it will differ by a great degree from the reasoning given in the Scottish Court of Session. However, if true, this would be particularly unfortunate given that an appeal to the ECtHR at the present time, even if it lead to a favourable outcome would not have any impact on detainees’ rights to vote in this referendum. In light of this issue, the applicants as well as all other affected parties deserved a judgment that focused more on the fact of the case itself rather than on the lack of clear Strasbourg jurisprudence on the topic.     

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Tagged: Constitution, Human Rights, Supreme Court

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