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A Case Note on Moohan V Lord Advocate

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A Case Note on Moohan V Lord Advocate Prisoners’ votes, referendums, and common law rights: A case note on Moohan v Lord Advocate Paul Fradley* I. THE ISSUES oohan1 concerned an application for judicial review of section 2 of the Scottish Independence Referendum (Franchise) Act 2013, an Act of the Scottish Parliament (‘ASP’). The 2013 ASP based the franchise for the Scottish Independence Referendum in September 2014 on that Mused for local elections in the UK. The law regarding local government election franchise in the UK is contained in section 3 of the Representation of the People Act 1983 which provides that ‘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’. The appellants in Moohan were prisoners in Scotland who were to be denied the right to vote in the Independence Referendum by the provisions of the 2013 ASP. The appellants’ initial application for judicial review was refused by Lord Glennie in the Outer House of the Court of Session,2 and this refusal was partly on the grounds that Article 3 Protocol 1 (‘A3P1’) of the European Convention on Human Rights (‘ECHR’) did not protect an individual’s right to vote in a referendum. The Inner House of the Court of Session also rejected the appellant’s case in July 2014.3 On appeal the appellants relied on a number of grounds; 4 firstly, that the Scottish Independence Referendum (Franchise) Act 2013 was incompatible with A3P1; secondly, that it was incompatible with Article 10 of the ECHR; thirdly, that it was incompatible with the law of the European Union; fourthly, that it contravened the requirements of the International Covenant on Civil and Political Rights 1966; fifthly, that 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’;5 and finally, that it contravened the requirements of the rule of law. The central grounds for review, and which the Court considered at great length, were the potential incompatibility with Convention rights and the alleged common law right to vote. The Supreme Court held by a majority of 5:2 that the ASP was valid, dismissing the countervailing common law and Convention-based arguments. Much of the discussion in the case concerned the content of ECHR jurisprudence and how this should be applied in a domestic context. On the Convention rights issue the result reached by the minority would have been preferable and the majority were confined by their interpretation of A3P1 and European Court of Human Rights (‘ECtHR’) jurisprudence. The case also represents a movement in the case law on section 2 of the Human Rights Act 1998 (‘HRA’) away from the so-called ‘mirror principle’, which is poignant given the concerns that have been expressed about the ECHR and the role of Strasbourg. On the common law rights point, the decision not to find a common law right in this case is interesting in the context of a recent resurgence in common law rights6 and the prospect of repeal of the HRA. However, the Supreme Court was arguably wrong not to consider more deeply the question of a common law right to vote even given the existence of clear legislative intent. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * Brasenose College, Oxford 1 The Supreme Court gave its judgment in Moohan in December 2014. However, the arguments, deliberation, and verdict took place on the 24th July due to the time constraints of the Scottish Independence Referendum, which took place in September 2014. 2 [2013] CSOH 199. 3 [2014] CSIH 56. 4 [2014] UKSC 67 [5] (Lord Hodge). 5 ibid. 6 See decisions in Osborn [2013] UKSC 61, Kennedy v The Charity Commission [2014] UKSC 20 and A v BBC [2014] UKSC 25. OXFORD UNIVERSITY! 53 UNDERGRADUATE LAW JOURNAL ! ! ! II. CONVENTION RIGHTS A. CONVENTION RIGHTS: THE ISSUE The central question before the Court in Moohan was whether the Scottish Independence Referendum came within the provisions of A3P1. A3P1 requires signatory parties to ‘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 decision in Moohan hung on the words: ‘the choice of the legislature’. All of their Lordships accepted that A3P1 of the ECHR prohibited a blanket ban on prisoners voting in elections, and that a vote in a UK General Election would clearly be captured by the phrase. This much is clear from the decisions of the Strasbourg Court in Hirst v United Kingdom (No 2)7 and, in the domestic context, the Supreme Court itself in Chester.8 Moohan therefore arose in the context of a highly-charged political issue, namely prisoners’ voting, an area in which UK law has been held incompatible with the requirements of the Convention and in which Parliament has recently rejected proposals to make UK law Convention-compliant. B. CONVENTION RIGHTS: THE APPROACH OF THE MAJORITY Lord Hodge, delivering the judgment of the majority of the Court, argued that A3P1 applied only to ‘periodic elections to a democratically elected legislature’ and that this was ‘the ordinary meaning of the words’.9 Much emphasis was placed by Lord Neuberger on the phrases ‘at regular intervals’10 and ‘elections’11 which he argued precluded A3P1 from applying to non-binding referendums and restricted it only to ‘directly effective elections’.12 Moreover, Lord Neuberger added that an entitlement to vote in the choice of the legislature did not automatically include an entitlement to vote in the choice of which legislature should govern.13 The majority relied heavily on the case law of the ECtHR in order to support their view that A3P1 did not extend to referendums. Lord Hodge quoted14 the decision in X v United Kingdom,15 in which the ECtHR held that A3P1 did not apply to the 1975 referendum on the UK’s membership of the European Community, along with the decisions in Ž v Latvia16 and Niedźwiedź v Poland,17 in which the ECtHR clearly restricted A3P1 to choices of the legislature. For Lord Hodge, the case law of Strasbourg was ‘unequivocal’ on the matter.18 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 (2005) 42 EHRR 849. 8 [2013] UKSC 63. 9 ibid [8] (Lord Hodge). 10 ibid [45] (Lord Neuberger). 11 ibid. 12 Chester (n 8) (Lord Neuberger) 13 ibid [46] (Lord Neuberger). 14 ibid [10] (Lord Hodge). 15 (1975) 3 DR 165. 16 (Application No 14755/03, 16 March 2006) (unreported). 17 (2008) 47 EHRR SE6. 18 Moohan (n 4) [14] (Lord Hodge). OXFORD UNIVERSITY! 54 UNDERGRADUATE LAW JOURNAL ! ! ! C. CONVENTION RIGHTS: THE APPROACH OF THE MINORITY However, Lord Kerr, dissenting, disagreed with this reasoning. For him the present case met the requirements that the Commission felt were absent in X. In that case the referendum was purely of a consultative character and there was no legal compulsion to hold the vote, while in Moohan both the Westminster and Holyrood Governments had agreed the result would be binding and there was legal compulsion to hold the vote through section 1(1) of the Scottish Independence Referendum Act 2013. While acknowledging it was ‘strictly unnecessary to go further’, he also argued there were serious deficiencies in the reasoning in X.19 Despite this, there was nothing in the Strasbourg case law that clearly excluded A3P1 from applying to referendums which ‘in effect determine the choice of legislature for a country’s people’.20 Lord Wilson, also dissenting, agreed with this conclusion, arguing that there was no decision of the Strasbourg Court directly on the issue.21 Lord Wilson, in particular, drew a distinction between different forms of referendum, suggesting that there was a fundamental difference between referendums designed to curtail some powers of the legislature, and referendums intended to end the power of the legislature.22 Thus, Lord Wilson would have been able to distinguish Moohan from the decisions of the ECtHR on the basis that they concerned accession to the European Community rather than secession. This was an argument rejected outright by Lord Hodge, who saw ‘no material difference’ between the two.23 Furthermore, the minority adopted a much more purposive approach to the interpretation of A3P1 than the majority. They argued that the purpose of A3P1 was to ‘ensure the free expression of the opinion of the people in the choice of the legislature’24 and that in the independence referendum voters were choosing not merely legislators but the legislature itself. 25 Moreover, the minority emphasised the importance of the vote in question as the ‘most fundamental of votes’26 and stated that to deny individuals the vote in such a case ‘would strike at the root of the values which A3P1 are designed to protect’.27 Therefore it was not conclusive that the framers of A3P1 had failed to provide for secession referendums.28 Both Lord Kerr and Lord Wilson bemoaned the emphasis placed by the majority on the phrase ‘at reasonable intervals’ in A3P1, arguing that it must be subordinate to the ‘primary aim of the provision’29 and that if the phrase was allowed to detract from the overall objective of A3P1 then ‘the tail would be wagging the dog’.30 The minority thus argued that A3P1 must cover cases like the Scottish Independence Referendum in order to give it fair effect in light of its objective. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 19 Moohan (n 4) [73] (Lord Kerr). 20 ibid [71] (Lord Kerr). 21 ibid [103] (Lord Wilson). 22 ibid [102] (Lord Wilson). 23 ibid [18] (Lord Hodge). 24 ibid [93] (Lord Wilson), quoting Article 3 of Protocol No 1.
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