Moohan, Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Hodge,Lord Neuberger,Lady Hale,Lord Clarke,Lord Reed,Lord Kerr,Lord Wilson |
| Judgment Date | 17 December 2014 |
| Neutral Citation | [2014] UKSC 67 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 1 |
| Date | 17 December 2014 |
[2014] UKSC 67
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Wilson
Lord Reed
Lord Hodge
THE SUPREME COURT
Michaelmas Term
On appeal from: [2014] CSIH 56
Appellants
Aidan O'Neill QC Christopher Pirie
(Instructed by Tony Kelly, Taylor and Kelly)
Respondent
Gerry Moynihan QC Douglas Ross
(Instructed by Scottish Government Legal Directorate Litigation Division)
Intervener
Lord Wallace of Tankerness QC Jason Coppel QC
(Instructed by Office of the Advocate General)
Heard on 24 July 2014
(with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agree)
In this appeal two men who had been convicted of very serious offences and who would continue to be detained in a penal institution on 18 September 2014 sought to establish a right of convicted prisoners to vote in the Scottish independence referendum on that date. As a prompt decision was needed, the court debated the matter and dismissed the appeal on the same day as the hearing. This judgment sets out the reasoning of the majority of the court.
The proceedings giving rise to the appeal were applications for judicial review of the Scottish Independence Referendum (Franchise) Act 2013 ("the Franchise Act"), an Act of the Scottish Parliament. The Franchise Act based the franchise for the referendum on the franchise for local government elections, which is determined by the Representation of the People Act 1983 ("the 1983 Act"), and extended it to young voters over the age of 16. Section 2(1)(b) of the 1983 Act provides that a person who is subject to any legal incapacity to vote is not entitled to vote as an elector at a local government election. Section 3(1) of the 1983 Act incapacitates convicted prisoners from voting. Such prisoners have lacked the legal capacity to vote since 1969. Before then, there were other legal provisions which disenfranchised felons or had the effect of preventing prisoners from being registered to vote.
The challenges follow on from decisions of the European Court of Human Rights ("the Strasbourg Court") concerning the disenfranchisement of convicted prisoners. In Hirst v The United Kingdom (No 2) (2005) 42 EHRR 849 the Grand Chamber held that the general and automatic disenfranchisement of convicted prisoners was a violation of article 3 of Protocol No 1 ("A3P1") of the European Convention on Human Rights ("ECHR"). In Scoppola v Italy (No 3) (2012) 56 EHRR 663 the Grand Chamber confirmed its judgment in Hirst. More recently, this court in ( R (Chester) v Secretary of State for Justice 2014 SC (UKSC) 25 McGeoch v Lord President of the Council [2014] AC 271) has applied the principles in Hirst and Scoppola in claims under the Human Rights Act 1998 (" HRA 1998"). The appellants did not claim that, if their appeal were to succeed, they would necessarily have a right to vote in the referendum but asserted that it was important to review the lawfulness of the legislation, which was a matter of general public importance. The Lord Advocate and the Advocate General for Scotland did not challenge that assertion.
Lord Glennie, who heard the applications in the Outer House of the Court of Session, issued his opinion refusing them on 19 December 2013 ( 2014 SLT 213). The First Division of the Inner House of the Court of Session refused a reclaiming motion on 2 July 2014 ( 2014 SLT 755). An expedited appeal was presented to this court on 24 July 2014.
Mr Aidan O'Neill QC for the appellants, submitted that the Franchise Act's blanket disenfranchisement of convicted prisoners in relation to the independence referendum was ultra vires the Scottish Parliament under the following headings:
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1. because it was incompatible with A3P1 of the ECHR;
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2. because it was incompatible with article 10 of the ECHR ("article 10");
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3. because it was incompatible with the law of the European Union ("EU law");
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4. because it contravened the substantive requirements of the International Covenant on Civil and Political Rights ("ICCPR");
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5. because it was incompatible with the basic democratic principles of the common law constitution, namely the principle of universal suffrage and the concomitant fundamental right to vote; and
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6. because it contravened the common law requirements of the rule of law.
The first three challenges are concerned with the effect which the Scotland Act 1998 gives to certain international norms, namely Convention rights incorporated into domestic law by HRA 1998 or EU law (defined in section 126(9) of the Scotland Act) which has precedence within its sphere over domestic law under the European Communities Act 1972, as limitations on the powers of the Scottish Parliament. Section 29(1) of the Scotland Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Subsection (2)(d) states that a provision is outside that competence so far as it is incompatible with any of the Convention rights or with EU law. In relation to those three challenges the issue is whether the appellants or other convicted prisoners have rights which invalidate the relevant provisions of the Franchise Act. The fourth challenge raises a separate issue, namely whether the ICCPR has any effect in domestic law. The fifth and sixth challenges raise the questions whether the common law recognises a principle of universal suffrage and whether a denial of such a principle would be contrary to the rule of law. I consider each challenge in turn.
A3P1 is entitled "Right to free elections". It provides:
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
The article requires the contracting states to hold elections at reasonable intervals and the Strasbourg Court, drawing on the travaux préparatoires, has interpreted it as also conferring a right of participation, both by standing for election and voting, in the election of representatives to the legislature: Mathieu-Mohin and Clerfayt v Belgium (1987) 10 EHRR 1, paras 46–51. The natural meaning of the article is that the phrase —"the free expression of the opinion of the people in the choice of the legislature" —is the product of the free elections at reasonable intervals by secret ballot. The article states that the elections are to be held "under conditions which will ensure" that free expression.
Article 31(1) of the Vienna Convention on the Law of Treaties (1969) provides, as a general rule of interpretation:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
In my view the ordinary meaning of the words of A3P1 strongly supports the view that the signatories of the ECHR were undertaking to hold periodic elections to a democratically elected legislature. The requirement that the elections are held "at reasonable intervals" also suggests that the drafters of A3P1 did not have referendums in mind. The words in their ordinary meaning do not support a wider view that A3P1 was intended to cover any major political decision which was put to a popular vote, however important that decision might be.
That the object and purpose of A3P1 is so limited is confirmed by the consistent case law of the European Commission on Human Rights and the Strasbourg Court. The Lord Ordinary, Lord Glennie, in para 22 of his opinion referred to X v United Kingdom (Application No 7096/75, 3 October 1975) and 11 subsequent decisions on admissibility which vouched the principle that A3P1 applies to elections to the legislature and has no application to voting in other elections or in a referendum. Lady Paton, delivering the succinct opinion of the First Division, agreed in para 24. It is not necessary to analyse all of those decisions, which vouch a consistent line of reasoning. I therefore examine four to highlight the scope of the reasoning of the Strasbourg Court.
X v UK concerned the referendum in 1975 on whether the United Kingdom should remain a member of the EEC. The Commission decided that A3P1 did not cover the referendum because it was not an election concerning the choice of the legislature. In Ž v Latvia (Application No 14755/03, 26 January 2006) the Third Section dealt with a complaint that a prisoner had not been allowed to vote in a referendum on Latvia's accession to the EU. It rejected the application as inadmissible, reiterating that the obligations imposed on Contracting States by A3P1 were "limited to parliamentary elections and do not apply to referendums". Niedźwiedź v Poland (2008) 47 EHRR SE6 concerned a prisoner who had been deprived of a right to vote in (i) the presidential election of 2000, (ii) parliamentary elections in 2001 and (iii) the referendum on Poland's accession to the European Union in 2003. The Strasbourg Court rejected the claims in respect of (i) and (iii) ratione materiae because the A3P1 obligations related to the choice of legislature.
The fourth decision, McLean and Cole v United Kingdom (2013) 57 EHRR SE95, concerned complaints by convicted prisoners about their disenfranchisement from (i) elections to the European Parliament in 2009, (ii) the United Kingdom parliamentary election of 2010, (iii) elections to the Scottish Parliament in 2007 and 2011, (iv) the nationwide referendum on the alternative vote also in 2011 and (v) local government elections. The court held that local authorities in the United Kingdom were not part of the legislature in A3P1 and that complaint (v) was inadmissible. In relation to complaint (iv) the...
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