New Judgment: Moohan & Anor v The Lord Advocate (Scotland)  UKSC 67
17 Wednesday Dec 2014
On appeal from:  CSIH 56
An appeal by two prisoners serving life sentences in judicial review proceedings against the Scottish Independence Referendum (Franchise) Act 2013, which denied prisoners the right to vote in the Referendum on 18 September 2014.
Despite cases in the ECtHR which have held on multiple occasions that it is illegal under human rights law for Britain to deny all prisoners the right to vote, these decisions have not been implemented in Britain to date. Therefore, the appellants brought a claim for judicial review of the current law. They argued the law was incompatible with ECtHR jurisprudence, as well as with EHCR, A3P1 and art 10 and British common law. They also argued that the Scottish Parliament could uphold the ECtHR’s decisions themselves.
The Outer House of the Court of Session in Scotland had previously dismissed the case, as did the Inner House. The prisoners then appealed to the Supreme Court. A panel of seven judges heard the case on Thursday 24 July 2014, and dismissed the appeal the same day by a majority of 5-2.
The majority held that the words of A3P1 on their ordinary meaning refer to an obligation to hold periodic elections to a democratically elected legislature. However, the requirement that such elections take place “at reasonable intervals” suggests that the drafters did not have referendums in mind. There was unequivocal case law from the ECtHR to show that the reach of A3P1 was limited to periodic general elections to the legislature. The minority felt that the requirement to hold elections at “regular intervals” was secondary to the primary aim of A3P1, which was to ensure that citizens should have a full participative role in the selection of those who would govern them.
The decision to dismiss the appeals was released in July, with reasons to follow.
Heather Green, University of Aberdeen, discusses the July decision here.