Moohan and Another v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 December 2014 |
| Date | 17 December 2014 |
| Court | Supreme Court (Scotland) |
Supreme Court
Before Lord Neuberger of Abbotsbury, Baroness Hale of Richmond, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Reed and Lord Hodge
The statutory ban on convicted prisoners voting in the Scottish independence referendum was not unlawful. It was not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determined the democratic franchise.
The Supreme Court so held (Lord Kerr and Lord Wilson dissenting in part) in giving reasons for dismissing, on July 24, 2014, an appeal by the petitioners, Leslie Moohan and Andrew Gillon, convicted prisoners serving sentences of imprisonment, against the decision of the First Division of the Inner House of the Court of Session (Lord President Gil), Lady Paton and Lord Menzies) (2014 SLT 755), upholding the refusal by Lord Glennie (2014 SLT 213) of their applications for judicial review of the blanket disenfranchisement of convicted prisoners under sections 2 and 3 of the Scottish Independenc e Referendum (Franchise) Act 2013.
Mr Aidan O'Neill, QC and Mr Christopher Pirie for the petitioners; Mr Gerry Moynihan, QC and Mr Douglas Ross for the Lord Advocate; Lord Wallace of Tankerness, QC, Advocate General and Mr Jason Coppel, QC (of the English Bar) for the Advocate General for Scotland, intervening. LORD HODGE said that the 2013 act based the franchise for the Scottish independence referendum on September 18, 2014, on the franchise for local government elections, which was determined by the Representation of the People Act 1983. Section 2(1)(b) of the 1983 act provided that a person who was subject to any legal in capacity to vote was not entitled to vote as an elector at a local government election. Section 3(1) incapacitated convicted prisoners from voting.
The petitioners submitted that the blanket disenfranchisement of convicted prisoners was ultra vires the Scottish Parliament because, inter alia, it was incompatible with article 3 of the First Protocol to the European Convention on Human Rights. Article 3 required contracting states to hold regula r elections and the European Court of Human Rights had interpreted it as also conferring a right of participation, both by standing for election and voting, in the election of representatives to the legislature.
In his Lordship's view, the ordinary meaning of the words of article 3 strongly...
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