Litigating with a Blunderbuss: Prisoner Votes, Moohan v Lord Advocate and the Independence Referendum Franchise
| Author | |
| DOI | 10.3366/elr.2015.0304 |
| Date | 01 September 2015 |
| Published date | 01 September 2015 |
| Pages | 409-414 |
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.”
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.
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: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.
[2011] UKSC 46, 2012 SC (UKSC) 122 at para 153 (henceforth “
When, in
See, for example,
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.”
Summarised by Lord Hodge in
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