Reclaiming Motion By Leslie Moohan (ap) And Andrew Urquhart Black Gillon (ap) Against The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Menzies,Lord President |
| Judgment Date | 02 July 2014 |
| Neutral Citation | [2014] CSIH 56 |
| Docket Number | P643/13 |
| Published date | 02 July 2014 |
| Court | Court of Session |
| Date | 02 July 2014 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 56 |
| Lord President Lady Paton Lord Menzies
| P643/13 P903/13
OPINION OF THE COURT delivered by LADY PATON
in the Reclaiming Motion
by
(1) LESLIE MOOHAN (AP) and (2) ANDREW URQUART BLACK GILLON (AP) Petitioners and Reclaimers;
against
THE LORD ADVOCATE Respondent:
in petition for
Judicial Review of sections2(1)(b)(i), 2(2)(a) and 3 of the Scottish Independence Referendum (Franchise) Act 2013 _______________
|
Petitioners and reclaimers: A O’Neill QC, Pirie; Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)
Respondent: Moynihan QC, Ross; Scottish Government Legal Directorate
2 July 2014
Serving prisoners unable to vote in the referendum on Scottish independence
[1] On 18 September 2014, an independence referendum is to be held in Scotland. Convicted offenders serving a prison sentence on that date will be ineligible to vote (sections 2 and 3 of the Scottish Independence Referendum (Franchise) Act 2013 and section 3(1) of the Representation of the People Act 1983). In these petitions for judicial review, two prisoners challenge their exclusion from the franchise. They seek:
(a) declarator that sections 2(1)(b)(i), 2(2)(a) and 3 of the 2013 Act are “not law” under section 29 of the Scotland Act 1998, being incompatible with European Convention rights;
(b) declarator that such a ban is unlawful as a matter of common law;
(c) declarator that the statutory provisions contravene the legitimate
expectation that Scottish legislation will conform to the UK’s public international law obligations;
(d) declarator that the statutory provisions are “not law” as they are
incompatible with EU law;
(e) reduction of the statutory provisions.
First hearing and reclaiming motion
[2] The cases came before Lord Glennie for a first hearing. The Lord Ordinary dismissed the petitions, for the reasons given in his Opinion dated 19 December 2013. The petitioners reclaimed. Grounds of appeal, answers, notes of argument, and a joint bundle of authorities were provided for the assistance of the court.
Grounds of appeal
[3] There are seven grounds of appeal. Read short, these are:
1. The Lord Ordinary misdirected himself as to the court’s duty under section 2(1) of the Human Rights Act 1998 to take into account judgments of the European Court of Human Rights (ECtHR) and other guidance from the Commission and the Committee of Ministers.
2. The Lord Ordinary erred in deciding that article 3 of the First Protocol (A3P1) to the European Convention on Human Rights (ECHR) did not apply to the referendum.
3. The Lord Ordinary erred in concluding that the legislation was not an interference with the right to freedom of expression under article 10 of the ECHR.
4. The Lord Ordinary erred in deciding that the legislation was not contrary to the common law fundamental right to vote.
5. The Lord Ordinary erred by failing to decide that the legislation was contrary to the rule of law as the referendum (a) would affect citizenship/nationality rights; (b) was contrary to Hirst v United Kingdom (No 2) (2006) 42 EHRR 41; and (c) failed to comply with the UK’s obligations in international law, and in particular the obligations under article 25 of the International Covenant on Civil and Political Rights (“ICCPR”).
6. The Lord Ordinary erred in deciding that the Scottish Parliament had the power to legislate contrary to the UK’s obligations under international law.
7. The Lord Ordinary erred in deciding that the legislation was not contrary to EU law because “there is no direct link between the independence referendum and any decision as to the future membership of the EU”.
Relevant statutory provisions
Representation of the People Act 1983
[4] The Representation of the People Act 1983 provides inter alia:
“2(2) A person is not entitled to vote as an elector in any electoral area unless registered there in the register of local government electors to be used at the election …
3(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election …”
Scottish Independence Referendum (Franchise) Act 2013
[5] Sections 2 and 3 of the Scottish Independence Referendum (Franchise) Act 2013 provide inter alia:
“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 at the referendum is held, the person is - …
(b) registered in either –
(i) the register of local government electors maintained under section 9(1)(b) of the 1983 Act for any area in Scotland …
(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 …”
Human Rights Act 1998: article 3 of the First Protocol (A3P1)
“Article 3
Right to Free Elections
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 …”
International treaties
International Covenant on Civil and Political Rights (ICCPR)
[6] In 1976, the United Kingdom ratified the ICCPR, which provides inter alia:
“Article 25
Every citizen shall have the right and opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country …”
Submissions for the petitioners
[7] The petitioners’ submissions were presented in both written and oral form. What follows is a summary, not necessarily in the same order of presentation as that adopted at the hearing.
Grounds of appeal 1 and 2: duty of the court under section 2(1) of the Human Rights Act 1998, and applicability of A3P1
[8] Senior counsel submitted first, that there was no clear and constant body of Strasbourg jurisprudence against the principle that A3P1 applied to referenda, particularly a referendum of the nature of the Scottish independence referendum (cf dicta in McLean and Cole v UK (2013) 57 EHRR SE8, paragraph 33). Secondly, the ECtHR in Strasbourg would undoubtedly seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that article 25 of the ICCPR was habile to include participation in referenda (General Comment adopted by the Human Rights Committee (27 August 1996) paragraphs 5-6, 9-10 and 19; Gillot v France (2003) 10 IHRR 22.) Thus the ECtHR, if construing A3P1 in circumstances such as the present, would extend it to referenda, particularly in view of the nature of the Scottish independence referendum, which arose from a legal obligation, focused on the breaking-up of an existing state, and was sufficiently similar to parliamentary elections in that it involved “the choice of the legislature”. Support for the petitioners’ contention could be found in the fact that the UK Supreme Court had shown a willingness to go further than existing Strasbourg jurisprudence where the particular facts and circumstances had not been before the Strasbourg court (In re G (Adoption: Unmarried Couple) [2009] 1 AC 173; Surrey County Council v P [2014] 2 WLR 642, paragraphs 62-63, 86.) Against that background, and bearing in mind the court’s duty under section 2(1) of the Human Rights Act 1998, the Lord Ordinary had misdirected himself in relation to that duty, and should have construed A3P1 as applying to referenda.
Ground of appeal 3: interference with the right to freedom of expression under article 10 of the ECHR
[9] Article 10 of the ECHR (the right to freedom of expression) protected the right to vote (Hirst v United Kingdom (No 2) (2006) 42 EHRR 41; Anchugov and Gladkov v Russia (application nos 11157/04 and 15162/05, 4 July 2013); Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) (2011) 52 EHRR 8). The legislation under challenge interfered with the right to freedom of expression. There was no clear and constant line of ECtHR cases requiring the court to decide otherwise. The court should therefore make the judicial choice that the legislation interfered with the right under article 10. The Lord Ordinary erred in paragraphs [34]-[43] of his Opinion in concluding otherwise.
Ground of appeal 4: legislation contrary to the common law fundamental right to vote
[10] There was a common law fundamental right to vote. In developing the common law, the court should comply with article 25 of the ICCPR (R v Lyons [2003] 1 AC 976; Gillot v France (2003) 10 IHRR 22; General Comment adopted by the Human Rights Committee (27 August 1996)). The court could also draw on Commonwealth sources (R (Osborn) v Parole Board [2013] 3 WLR 1020; R (West) v Parole Board [2005] 1 WLR 350). The Scottish Parliament had no power to override fundamental rights: express words would be required for such a power (cf Axa General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122 at paragraphs [152]-[153])....
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