Factual and Procedural Background
Two convicted prisoners (the “Appellants”) sought judicial review of the Scottish Independence Referendum (Franchise) Act 2013 (“the Franchise Act”). The Act fixed the franchise for the 18 September 2014 Scottish independence referendum by adopting the electorate for local government elections under the Representation of the People Act 1983, which excludes convicted prisoners from voting.
The applications were refused in the Outer House of the Court of Session on 19 December 2013, and a reclaiming motion was dismissed by the First Division on 2 July 2014. An expedited appeal was heard by the Supreme Court of the United Kingdom on 24 July 2014, where the court dismissed the appeal the same day, reserving reasons that are set out in the opinion summarised here.
Legal Issues Presented
- Whether the blanket disenfranchisement of convicted prisoners from the Scottish independence referendum was incompatible with Article 3 of Protocol 1 (“A3P1”) to the European Convention on Human Rights.
- Whether the restriction violated Article 10 of the European Convention on Human Rights (freedom of expression).
- Whether the restriction contravened European Union law.
- Whether the Franchise Act breached the United Kingdom’s obligations under Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”).
- Whether a common-law principle of universal suffrage rendered the exclusion unlawful.
- Whether the exclusion offended the common-law concept of the rule of law.
Arguments of the Parties
Appellants’ Arguments
- The blanket ban was incompatible with A3P1 because it applied automatically to all convicted prisoners.
- Article 10 ECHR provided an additional right to political expression that encompassed voting in the referendum.
- The referendum outcome might affect EU citizenship; therefore, EU law required inclusion of convicted prisoners in the franchise.
- Article 25 ICCPR protected participation in referendums on self-determination, and the Scottish Parliament could not legislate contrary to that obligation.
- The common law recognises a fundamental right to universal suffrage subject only to proportionate limitations; the ban was disproportionate.
- Exclusion from such a pivotal democratic event offended the rule of law.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 |
General and automatic disenfranchisement of prisoners breaches A3P1 in elections to a legislature. |
Recognised but distinguished: A3P1 applies to legislative elections, not referendums. |
| Scoppola v Italy (No 3) (2013) 56 EHRR 19 |
Confirmed Hirst; prisoner voting bans require careful justification. |
Same distinction as above; supports principle but not applicability to referendums. |
| McGeoch v Lord President of the Council / R (Chester) v Secretary of State for Justice [2014] AC 271 |
Domestic application of Hirst principles; no EU right to vote. |
Cited to reject EU-law and A3P1 challenges to referendum voting rights. |
| X v United Kingdom (App 7096/75) |
A3P1 does not extend to referendums that are not elections to a legislature. |
Key authority for holding that the Scottish referendum fell outside A3P1. |
| Z v Latvia (App 14755/03) |
Referendum on EU accession outside A3P1. |
Cited to illustrate consistent Strasbourg approach excluding referendums. |
| Niedzwiedz v Poland (2008) 47 EHRR SE2 |
Same principle as Z v Latvia. |
Relied on as part of the “clear and constant” Strasbourg line. |
| McLean & Cole v United Kingdom (2013) 57 EHRR SE8 |
Reaffirmed that A3P1 is limited to legislative elections. |
Considered; first sentence of para 33 examined but found insufficient to widen A3P1. |
| Anchugov & Gladkov v Russia [2013] ECHR 638 |
A3P1 does not cover election of a head of state. |
Used to reinforce narrow scope of A3P1. |
| Matthews v United Kingdom (1999) 28 EHRR 361 |
European Parliament falls within “the legislature” for A3P1 purposes. |
Cited to illustrate what counts as a legislature, contrasting with referendums. |
| Manchester City Council v Pinnock [2011] 2 AC 104 |
Domestic courts should follow a clear and constant Strasbourg line unless contrary to fundamental principles. |
Applied as guidance for accepting Strasbourg’s view on referendums. |
| Rottmann v Freistaat Bayern [2010] QB 761 |
Loss of EU citizenship can fall within EU law. |
Distinguished; Franchise Act did not operate in the “sphere of nationality.” |
Court's Reasoning and Analysis
A3P1: The text obliges states to hold “free elections” concerning “the choice of the legislature.” Strasbourg authorities consistently treat referendums as outside that remit. The Scottish vote, though historic, was not an election “at reasonable intervals” to a legislature; therefore, A3P1 was not engaged.
Article 10 ECHR: Freedom of expression is lex generalis; voting rights are lex specialis under A3P1. Article 10 confers no wider right to vote.
EU Law: (1) A “yes” vote would not itself alter EU citizenship; any change depended on subsequent negotiations and legislation. (2) EU law itself contains no right to vote in national referendums (McGeoch). Accordingly, no incompatibility arose.
ICCPR: The Covenant is not incorporated into domestic law. Section 35 of the Scotland Act 1998 leaves enforcement of international obligations to the executive, not the courts. Therefore, alleged breaches of Article 25 ICCPR did not limit Holyrood’s legislative competence.
Common-law Right to Vote: Historically, the franchise has always been determined by statute. Recognising a free-standing common-law right would conflict with the 1983 Act’s express exclusion of prisoners. While the common law might in extreme circumstances invalidate legislation that entrenched power, this was far removed from such a case.
Rule of Law: No separate universal suffrage principle arises. The Franchise Act was enacted under powers expressly devolved by the Scotland Act and therefore complied with the rule of law.
Holding and Implications
Holding: APPEAL DISMISSED.
Convicted prisoners remained excluded from voting in the 2014 Scottish independence referendum. The decision confirms that, under existing Strasbourg jurisprudence, A3P1 applies only to elections for legislatures, not to referendums, even of constitutional magnitude. No broader precedent was set; the ruling leaves intact the possibility that future legislative change—not judicial intervention—would be required to extend voting rights to prisoners in referendums.