Litigating with a Blunderbuss: Prisoner Votes, Moohan v Lord Advocate and the Independence Referendum Franchise

Date01 September 2015
Published date01 September 2015

In the final parliamentary debate on the Scottish Independence Referendum (Franchise) Bill (the “Referendum Bill”), Nicola Sturgeon succinctly summarised the limited scope of Holyrood's analysis of the lawfulness of excluding convicted prisoners from the 2014 referendum voting roll. Dismissing objections, she observed: “the legal position is clear. The European Convention on Human Rights (“ECHR”) does not apply to referendums, and case law backs that up.”1

Scottish Parliament, Official Report col 21802 (27 June 2013).

During the passage of the Bill, analysis of the lawfulness of the legislation focussed almost exclusively on the Strasbourg court's jurisprudence under Article 3 of Protocol 1 (“A3P1”) of the ECHR. The Referendum Bill committee report discussed only potential ECHR objections to the exclusion of prisoners from the franchise, as did the Scottish Government's Policy Memorandum on the legislation.2

Referendum (Scotland) Bill Committee, Stage 1 Report on the Scottish Independence Referendum (Franchise) Bill, SP Paper 314 (2013), paras 46–49; Scottish Government, Scottish Independence Referendum (Franchise) Bill Policy Memorandum (2013), para 13.

Contributing to the committee's scrutiny of the proposals, the Deputy First Minister maintained the same line:3

Scottish Parliament, Official Report, Referendum (Scotland) Bill Committee col 528 (6 June 2013).

on the law, I have said to Parliament previously that ECHR case law in this area does not apply to the right to vote in a referendum. I do not think that that is contested by anyone.

There was no discussion of alternative grounds on which the legality of the legislation could be contested under the Scotland Act 1998 or the extra-statutory grounds of review – of abrogating “fundamental rights” or violating “the rule of law” – identified by Lords Hope and Reed in AXA General Insurance Ltd v Lord Advocate.4

[2011] UKSC 46, 2012 SC (UKSC) 122 at para 153 (henceforth “Axa”).


When, in Moohan v Lord Advocate, the legislative competence of the Scottish Independence (Franchise) Act 2013 (the “Franchise Act”) was tested by two convicted prisoners before Lord Glennie in the Outer House in December 2013, however, it became clear that the petitioners would range far more widely than Holyrood in search of arguable points of review.5

Moohan v Lord Advocate [2013] CSOH 199, (2014) SLT 213 (henceforth “Moohan”), discussed previously in this journal: see A Tickell, “Prisoner voting gambits: disappointment all round in Chester, McGeogh and Moohan” (2014) 18 EdinLR 289.

Judicial challenges to the vires of Acts of the devolved parliaments have become characterised by litigants' blunderbuss tactics, loading into their briefs a diverse array of legal ammunition, in the hope that something, anything, finds its mark. Unsuccessful at first instance and defeated in the Inner House, Moohan's appeal to the Supreme Court is a case study in this litigation strategy. In contrast with the simplicity of the Scottish Parliament's legal analysis, Moohan's submissions to Lady Hale and Lords Neuberger, Kerr, Clarke, Wilson, Reed and Hodge reflect the many-angled legal complexity which continues to characterise recent high-profile devolution cases.6

See, for example, Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61, 2013 SC (UKSC) 153; Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] 2 WLR 481.

Aidan O'Neill QC, for the appellants, submitted that the Franchise Act violated the right to vote under A3P1 of the ECHR, Article 10's protection of free expression, EU law and international law. He also contested the lawfulness of the Act on domestic “constitutional” grounds, arguing that the ban was “incompatible with democratic principles of the common law constitution, namely the principle of universal suffrage and the concomitant fundamental right to vote” and “contravened the common law requirements of the rule of law.”7

Summarised by Lord Hodge in Moohan v Lord Advocate [2014] UKSC 67, 2015 SLT 2 at para 5 (henceforth “Moohan (Supreme Court)”).

Most of these grounds of challenge are simply missing from Holyrood's legislative scrutiny of the ban, unmentioned and

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