UK Supreme Court Upholds Disenfranchisement of Convicted Prisoners in Scottish Independence Referendum

Introduction

The case of Moohan & Anor v. The Lord Advocate (2015 SC (UKSC) 1) addressed the contentious issue of whether convicted prisoners in Scotland possess the right to vote in the Scottish independence referendum held on September 18, 2014. The appellants, two men serving sentences for serious offenses, challenged the Scottish Independence Referendum (Franchise) Act 2013, which categorically disenfranchised convicted prisoners. This commentary delves into the comprehensive judgment delivered by the United Kingdom Supreme Court, analyzing the legal principles, precedents, and implications of the decision.

Summary of the Judgment

The Supreme Court unanimously dismissed the appeal brought forward by Moohan and Gillon, thereby upholding the existing legislative framework that prevents convicted prisoners from voting in the Scottish independence referendum. The court's decision was grounded in the interpretation of Article 3 of Protocol No. 1 (A3P1) of the European Convention on Human Rights (ECHR), European Court of Human Rights (Strasbourg Court) precedents, and the domestic legal provisions under the Representation of the People Act 1983. The judgment emphasized that referendums do not fall within the scope of A3P1, which is confined to legislative elections. Consequently, the blanket disenfranchisement of convicted prisoners was deemed lawful and within the competence of the Scottish Parliament.

Analysis

Precedents Cited

The judgment extensively referenced previous rulings from the European Court of Human Rights (ECtHR), particularly the landmark case Hirst v. United Kingdom (No 2) (2006) 42 EHRR 41, which declared the automatic disenfranchisement of prisoners as a violation of A3P1. However, subsequent cases such as Scoppola v. Italy (No 3) (2013) 56 EHRR 19 reaffirmed the limitation of A3P1 to legislative elections, excluding referendums. The court also examined domestic cases like McGeoch v Lord President of the Council (2014 SC (UKSC) 25), which applied the Hirst principles to scrutinize claims under the Human Rights Act 1998.

Legal Reasoning

The court's reasoning hinged on a meticulous interpretation of A3P1 of the ECHR. It concluded that A3P1 strictly pertains to elections for legislative bodies and does not extend to referendums, which are considered distinct democratic exercises. The judgment underscored that the franchise for the Scottish independence referendum was appropriately determined by the Representation of the People Act 1983, which lawfully disenfranchised convicted prisoners. Additionally, challenges based on Article 10 of the ECHR, EU law, the International Covenant on Civil and Political Rights (ICCPR), and common law rights were systematically addressed and dismissed as unpersuasive or incompatible with established legal frameworks.

Impact

This judgment reinforces the lawful disenfranchisement of convicted prisoners from participating in referendums, aligning domestic law with European jurisprudence that confines A3P1 to legislative elections. It establishes a clear precedent that referendums, regardless of their significance, do not fall under the protections of A3P1. This decision upholds the legislative competence of the Scottish Parliament in determining franchise qualifications for public votes and signals continuity in the UK's approach to prisoner disenfranchisement in referendums.

Complex Concepts Simplified

Article 3 of Protocol No. 1 (A3P1) of the ECHR

A3P1 guarantees the right to free elections, ensuring that citizens can freely express their opinion in choosing their legislature through regular, fair, and secret ballots. Importantly, this right is specifically tied to legislative elections and does not inherently extend to other democratic processes like referendums.

Vienna Convention on the Law of Treaties

The Vienna Convention provides the foundational principles for interpreting international treaties. Article 31 emphasizes interpreting treaties in good faith according to their ordinary meaning, context, and purpose. Article 32 allows supplementary means of interpretation to clarify ambiguities.

International Covenant on Civil and Political Rights (ICCPR)

The ICCPR, particularly Article 25, encompasses rights related to participation in public affairs, including voting and being elected. While broader than A3P1, its applicability to specific cases like referendums remains nuanced and context-dependent.

Conclusion

The Supreme Court's decision in Moohan & Anor v. The Lord Advocate underscores the judiciary's adherence to established interpretations of international human rights instruments within the domestic legal context. By affirming that A3P1 does not encompass referendums, the court has solidified the legal standing of legislative disenfranchisement of convicted prisoners in Scotland's significant political events. This judgment not only delineates the boundaries of A3P1 but also reinforces the supremacy of statutory provisions in determining electoral franchises, ensuring that future referendums remain outside the purview of prisoner voting rights under current human rights interpretations.