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The Supreme Court, sitting as a bench of seven, yesterday dismissed the appeal brought by two Scottish prisoners challenging the provision of the Scottish Independence Referendum (Franchise) Act 2013 that disenfranchises them: Moohan and Another v Lord Advocate UKSC 2014/0183.   The Court ruled to reject the appeal, upholding the decisions of both the Outer and Inner House of the Court of Session that the blanket ban is not unlawful: Moohan, Gibson and Gillon Petitioners, [2013] CSOH 199 and [2014] CSIH 56.  Given the urgency of the issue, the ruling was made immediately after the hearing, and the Court will issue its judgment in due course.  This post meantime offers some reflections on the hearing and on the ruling and initial responses to it. 

The Scottish Government has responded to welcome the judgment and the Supreme Court’s finding that the ban is compatible with both Convention rights and EU law (“Murderers lose court battle for vote”, The Scotsman, 25 July 2014).  While this is technically true, it is a claim that carefully distracts from the core of the argument put vigorously to the Court on behalf of the appellants yesterday. That is, that international law norms do prohibit blanket bans on prisoner voting.  Article 3 of Protocol 1 (A3P1), ECHR – protecting the right to free elections – does not permit blanket bans on prisoner voting in legislative elections (Hirst v UK (No 2) App No.74025/01 (2005);  Scoppola v Italy (No 3) App No. 126/05 (2012)).  Article 25 of the International Covenant on Civil and Political Rights guarantees a right to vote in all elections and referendums on terms that that also outlaw blanket bans . The appellants’ case founded on both, and sought to persuade the justices that they should read those international law norms in light of a common law right to vote expressive of a fundamental principle of “universal equal suffrage” that demands that any limitation of the franchise be proportionate.  Blanket voting bans imposed on prisoners (or on other groups, such as the mentally incapacitated) are, as case law from Strasbourg has already established conclusively, disproportionate.  

The challenge for the appellants yesterday was considerable and ultimately insurmountable: there is a long line of Strasbourg decisions that have refused to apply A3P1 to referendums because the text refers only to “free elections” for the legislature (see my earlier post on this blog).  The Court did not take up the invitation to depart from this Strasbourg jurisprudence offered to them by Aidan O’Neill QC, counsel for the appellants. He pointed the justices to a sentence in McLean and Cole v UK ((2013) 57 EHRR SE8; again see my previous post) that could be read as indicating the Strasbourg Court’s willingness to countenance some referendums as falling within the scope of A3P1. The Supreme Court clearly did not regard this a sufficient lead from Strasbourg to justify stepping out into a new line of doctrine applying A3P1 to referendums held in the UK. Nor did the appellants succeed in persuading the court that this referendum fell within A3P1 because it was in a sense about voters “choosing a legislature” (the language of A3P1), namely whether the Scottish or Westminster Parliament should be Scotland’s supreme lawmaker. 

This litigation has given the Supreme Court a rare opportunity to articulate its understanding of the constitutional meaning of the right to vote. This is only the third case to reach the Supreme Court involving the limits of the right to free elections in A3P1 (the first was R (Barclay & Ors) v Secretary of State for Justice [2009] UKSC 9, on election law on the island of Sark; the second was the unsuccessful challenge to the UK’s prisoner voting ban in  R (Chester) v Secretary of State for Justice and McGeoch v Lord President of the Council [2013] UKSC 63). Statute – in this case the Franchise Act – structures and limits the franchise. Hearing this case, the Court of Session was not overly receptive to claims about the separable common law foundations of the right to vote.  If the right to vote is co-extensive with the (limited) protections contained in A3P1, ECHR, and in existing election legislation, it is a poor relation of a fully constitutionalised concept of the franchise that offers scope for airing fruitful legal arguments about the legitimacy of subsisting limitations on so-called universal suffrage.  It is not only prisoners who may seek to bring a voting rights claim: some non-resident Scots did consider challenging their exclusion from the referendum, but have no viable avenue of legal argument available to do this under either the ECHR or EU law (“Expat Scots ‘Have Right to Vote'”, The Scotsman, 9 March 2014).

A domesticated common law constitutional right to vote could supply what the Convention right to free elections has failed to: a space for argument about the constitutionality of franchise laws that is foreclosed by judicial reluctance to define voting as a right with common law roots from which statutory and Convention law branches grow.  During the hearing the justices did interrogate counsel about the common law origins of the right to vote pre-dating election statutes. There were also some interjections from the bench about the difficulty of constructing a space for the common law right when all elections are creatures of statute.  It will be interesting to discover where those reflections ultimately lead in the judgment. 

The Court’s ruling yesterday avoids the constitutional drama that a finding of unlawfulness would have caused.  To have struck down s 3 of the Franchise Act would have represented the  most high-profile exercise yet of the Supreme Court’s power to invalidate a provision of an Act of the Scottish Parliament.  That would have necessitated speedy changes to the law to remedy the flaw and permit (some at least) prisoners to vote on September 18, or emergency legislation passed at Westminster to immunise the ban from judicial invalidation.  Liberalising the law would have caused political tensions about which prisoners should be permitted to vote and these disagreements would have been difficult to manage to gain a legislative consensus in time for the relevant administrative arrangements to be made.  No doubt referendum administrators as well as the government and its officials are very relieved by the ruling.  The media too have the opportunity to report this as another unsuccessful attempt by undeserving “killers” to claim the right to vote (“Killers lose Supreme Court bid for right to vote in poll”, The Herald, 25 July 2014). This reductive presentation of the issues at stake is unfortunate, if predictable. It denigrates the vital service that the appellants and their advocates have done by pressing the Scottish Government to defend its ban. Gerry Moynihan QC, for the Lord Advocate, relied very heavily in his oral argument yesterday on the principle of dualism: that whatever acknowledged rights to vote in referendums prisoners may enjoy by virtue of the international law obligations of the UK and Scottish governments, those are of no effect until translated into domestic legislation.  The Scottish Parliament was within its powers meantime to decide to disenfranchise all prisoners, despite the principle of Convention law forbidding it from making a similar decision should it, post-putative independence, be engaged in deciding who gets the right to vote in Scottish national elections.  It is certainly true that the Convention right to free elections, as currently understood and applied, does not extend to referendums. But the Scottish Government ought not to claim any moral victory with this win in the Supreme Court.  The Franchise Act may be lawful, but there is something rather unseemly about such a fundamental constitutional poll being conducted on the basis of such a legalistic approach to minimal compliance with human rights norms. 

Referendum voting rights are likely to be a contested issue again should the Conservatives’ promised poll on continued EU membership come to pass.  The Supreme Court’s rejection of the challenge to the Franchise Act seems to foreclose any possibility of it being persuaded later to apply A3P1 to find in favour of appellants disenfranchised in an EU referendum. On this they would be on safe Strasbourg ground: several of the decisions declining to apply A3P1 to referendums concerned polls on EU membership.  A3P1 does protect the right to vote in European Parliamentary elections, but not (yet) the right to vote in referendums about EU affiliation or membership. For now, the question of the lawfulness of the Franchise Act is settled as regards the independence referendum.  The finality of the ruling from the Supreme Court serves to legitimate a law about which there were reasons for genuine constitutional doubt. It provides constitutional closure: the referendum can now proceed with those doubts resolved.  It is unlikely though that the written judgment, when it comes, will settle the unanswered concerns raised by the appellants’ powerful argument that there is something constitutionally suspect about a legal system that permits the Scottish Parliament to ignore international law norms when distributing the franchise. It is an inauspicious exercise of legislative power that also sits uncomfortably with the Scottish Government’s decision to sponsor voting rights for people under 18, to whom – like prisoners – A3P1 doctrine does not grant a guaranteed franchise.  Such selective transposition of international law voting rights doctrine seems constitutionally suspect, even if we now know it is lawful.

Heather Green is a senior lecturer in the School of Law at the University of Aberdeen.

This post first appeared on the Scottish Constitutional Futures Forum.  Reproduced here with kind permission.