Leslie Moohan+gary Gibson+andrew Gillon For Judicial Review Of Sesions 2(1)(a)(i) And 3 Of The Scottish Independence Referendum (franchise) Act 2013

JurisdictionScotland
JudgeLord Glennie
Neutral Citation[2013] CSOH 199
Published date19 December 2013
CourtCourt of Session
Docket NumberP643/13
Date19 December 2013

OUTER HOUSE, COURT OF SESSION

[2013] CSOH 199

P643/13

P901/13

P903/13

OPINION OF LORD GLENNIE

in Petition of

LESLIE MOOHAN, GARY GIBSON

and ANDREW URQUHART BLACK GILLON

Petitioners;

for judicial review of

sections 2(1)(a)(i), 2(2)(a) and 3 of the Scottish Independence Referendum

(Franchise) Act 2013

________________

Petitioners: O'Neill QC, Pirie; Balfour + Manson LLP

Respondent: Moynihan QC, Ross; Scottish Government

19 December 2013

The independence referendum

[1] On 18 September 2014 there will be a referendum in Scotland ("the independence referendum") to answer the question: "Should Scotland be an independent country?" This is laid down in section 1 of the Scottish Independence Referendum Bill which passed the Scottish Parliament in November 2013. It has not yet received the royal assent, but there is no doubt that it will in due course become law. It has the support of the United Kingdom government.

[2] This opinion, covering the arguments raised in three petitions, is concerned with the right to vote in that independence referendum. In particular, it concerns the right of convicted prisoners to vote. This is presently excluded by a blanket ban on prisoners voting. This was enacted by the Scottish Parliament. The question before the court is as to the legality of that blanket ban.

The franchise for the independence referendum

[3] Even before the passing of the Referendum Bill, the franchise for the independence referendum was the subject of legislation in the Scottish Parliament. The Scottish Independence Referendum (Franchise) Act 2013 ("the Franchise Act") makes provision for those who are and are not entitled to vote. The petitions in this case concern the "blanket ban" on convicted prisoners voting in the referendum if on that date they are detained in a penal institution in pursuance of the sentence imposed on them. The ban does not apply to prisoners on remand awaiting trial, nor to persons imprisoned for contempt of court; nor, obviously, to persons who have completed their sentence of imprisonment. Accordingly, when I refer in this opinion to "prisoners", I mean convicted prisoners currently serving sentences of imprisonment; and when I refer to the blanket ban on prisoners voting, I use that as shorthand for the ban which excludes from voting any convicted prisoner who, at the time of the vote, is serving his or her sentence of imprisonment.

[4] The relevant sections of the Franchise Act are sections 2 and 3, which provide so far as material as follows:

"2. Those entitled to vote in an independence referendum

(1) A person is entitled to vote in an independence referendum if, on the date on which the poll that the referendum is held, the person is -

(a) aged 16 or over,

(b) registered in either -

(i) the register of local government electors maintained under section 9(1)(b) of the [Representation of the People Act 1983] for any area in Scotland, or

(ii) the register of young voters maintained under section 4 of this Act for any such area,

(c) not subject to any legal incapacity to vote (age apart), and

(d) a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union.

(2) For the purposes of this Act, a person is, on any date, subject to a legal incapacity to vote if the person -

(a) would be legally incapable (whether by virtue of any enactment or any rule of law) of voting at a local government election in Scotland held on that date, or

(b) is legally incapable, by virtue of section 3, of voting in an independence referendum held on that date.

3. Offenders in prison etc. not to be entitled to vote

(1) 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."

The blanket ban on prisoners voting is achieved by the Franchise Act in three separate ways. First, since the Representation of the People Act 1983 (RPA 1983) prohibits serving prisoners from being registered on the register of local government electors, section 2(1)(b)(i) is not satisfied. Second, in terms of the RPA 1983, a serving prisoner is legally incapable of voting at a local government election in Scotland and is therefore subject to a legal incapacity to vote in the referendum by virtue of section 2(2)(a). Third, a serving prisoner is expressly stated by section 3(1) to be legally incapable of voting in an independence referendum and is therefore subject to a legal incapacity to vote in the referendum in terms of section 2(2)(b). It will be apparent that in terms of those sections no convicted prisoner may vote while serving a sentence of imprisonment, no matter how long or short is his or her sentence and no matter how serious is the offence for which he or she was sentenced. It is for this reason that it is colloquially but accurately referred to as a "blanket ban".

The petitioners

[5] I heard three petitions for judicial review at the instance of three individual petitioners. Each of the petitioners is a prisoner in HM Prison Addiewell in West Lothian. The petitioner in petition P643/13 is Leslie Moohan, currently serving a sentence of life imprisonment with a punishment part in terms of section 2 of the Prisoners and Criminal Proceedings Act 1993 of 15 years, backdated to February 2008. He is not eligible for release until, at the earliest, February 2023. Petition P901/13 concerns Gary Gibson, currently serving a sentence of imprisonment of seven years and four months with effect from July 2012. The third petition P903/13 concerns Andrew Gillon, who was sentenced to life imprisonment in May 1998. In terms of Schedule 1 to the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of his sentence has been fixed at 12 years, backdated to 13 January 1998. That punishment part expired in January 2010. Since that time he has been detained on the ground of the risk that he poses, as assessed by the Parole Board for Scotland, rather than punishment for the offence. The Parole Board for Scotland will not consider his case again until 22 September 2014, after the date of the referendum. He will not be released until then at the earliest.

[6] Accordingly, none of the petitioners is due to be released until after the date fixed for the referendum. They will all still be serving prisoners at the time of the referendum, and in terms of the sections 2 and 3 of the Franchise Act will be ineligible to vote. They each wish to vote in the referendum. By these petitions they each contend that the blanket ban on prisoners voting in the independence referendum is unlawful on ECHR and other grounds. Nothing turns for present purposes on the different offences of which they have been found guilty or the different periods of imprisonment to which they have been sentenced. As is made clear in the decided cases (see Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 at para 72), and as was accepted in argument before me, a prisoner is entitled to challenge the statutory removal of or restriction on his right to vote, on ECHR grounds at least, notwithstanding that if the legislation were redrafted in an ECHR compliant manner he would not necessarily be entitled to vote. So this case is not about whether prisoners serving lengthy periods of imprisonment for particularly serious crimes should be allowed to vote. It is about whether a blanket ban on all prisoners voting is lawful.

Grounds of challenge

[7] The challenge to the blanket ban on voting is made on a number of different grounds. First, there are grounds based upon article 1 of the First Protocol ("A3P1") and article 10 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). A challenge was originally advanced also on the basis of article 14, but in light of the decision of the Supreme Court in McGeogh, to which I refer below, this was not insisted upon. Second, there are grounds based upon what are said to be "fundamental" or "constitutional" rights enshrined in the common law, namely: the rule of law; the right to vote; and respect for international obligations. Third, it is said that, in circumstances where the result of the referendum would or might lead to the loss of European Union rights, the blanket ban is contrary to EU law.

[8] I propose to consider these various grounds of challenge in that order. In doing so, I have not overlooked the point made by Lord Reed in Osborn v The Parole Board [2013] UKSC 61 at paragraphs 54- 63 that it is an error to maintain a clear separation between common law and Convention rights and to suppose that because an issue falls within the ambit of a Convention guarantee, the legal analysis should begin and end with the Convention and the Strasbourg case law on it. Nonetheless, it is convenient to discuss the different issues raised by the various challenges separately.

ECHR challenges

The Human Rights Act 1998

[9] The Human Rights Act 1998 was passed by the United Kingdom Parliament to give effect in the United Kingdom to the "Convention rights" set out in Articles 2 to 12 and 14 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"), Articles 1 to 3 of the First Protocol thereto and also, by amendment, article 1 of the Thirteenth Protocol: see section 1. Section 6 of the Act makes it "unlawful for a public authority to act in a way which is incompatible with a Convention right", unless it is required so to act by "primary legislation" (mainly but not exclusively Acts of the UK Parliament). In relation to any act of a public authority which the court finds is unlawful, the court is given the power to grant such relief or remedy or make such order within its powers as it considers just and appropriate: see section 8. In addition, the court has been given power to determine whether a provision of primary legislation is compatible with a Convention right: see section 4....

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3 cases
  • Reclaiming Motion By Leslie Moohan (ap) And Andrew Urquhart Black Gillon (ap) Against The Lord Advocate
    • United Kingdom
    • Court of Session
    • 2 July 2014
    ...(Franchise) Act 2013. Following a first hearing, on 2 December 2012, before the Lord Ordinary (Glennie) the petition was dismissed ([2013] CSOH 199). The petitioners reclaimed to the Inner House of the Court of Session. Cases referred to: Advocate (HM) v R 2001 SLT 1336 Ambrose v Harris [20......
  • Moohan, Petitioner
    • United Kingdom
    • Supreme Court (Scotland)
    • 17 December 2014
    ...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......
  • Moohan and Another v Lord Advocate
    • United Kingdom
    • Supreme Court (Scotland)
    • 17 December 2014
    ...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 Ind......
3 books & journal articles
  • Litigating with a Blunderbuss: Prisoner Votes, Moohan v Lord Advocate and the Independence Referendum Franchise
    • United Kingdom
    • Edinburgh Law Review No. , September 2015
    • 1 September 2015
    ...clear that the petitioners would range far more widely than Holyrood in search of arguable points of review.5 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 rou......
  • Prisoner Voting Gambits: Disappointment all round in Chester, McGeoch and Moohan
    • United Kingdom
    • Edinburgh Law Review No. , May 2014
    • 1 May 2014
    ...was foreseeable. The inevitable petitions for judicial review came before Lord Glennie in the Outer House in Moohan, Petitioner,13 13 [2013] CSOH 199, 2014 SLT submitted by three prisoners currently detained in HMP Addiewell. Although Lord Glennie rejected all of the petitioners’ arguments ......
  • The Referendum on Scottish Independence: A Process as well as an Event
    • United Kingdom
    • Edinburgh Law Review No. , May 2014
    • 1 May 2014
    .... This view has been endorsed by Lord Glennie in the Outer House.14 14 Moohan and others, Petitioners [2013] CSOH 199. B. THE QUESTION The Referendum Act contains a raft of important provisions which, inter alia, frame the question to be put to voters. The question as originally proposed by......

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