A case to make its mark?
The UK Supreme Court has ruled against a human rights challenge by prisoners seeking to vote in the independence referendum, but would the Strasbourg court take the same view?
On 24 July 2014 the UK Supreme Court upheld the Court of Session’s decision in Moohan and Gillon, Petrs  CSOH 199;  CSIH 56, that prisoners do not have the right to vote in the Scottish independence referendum. Its written reasons are awaited. In electing to bar prisoners from voting, it is suggested that the Scottish Government missed an opportunity to make an important statement about its respect for human rights.
This is compared to its approach for 16 and 17-year-olds, for whom it went further than required by the European Convention. The sponsoring minister, Nicola Sturgeon, did not offer satisfactory reasons for prisoner disenfranchisement, instead focusing on the fact that it followed European human rights case law and UK constitutional practice.
This article examines the case for prisoner votes in the referendum under article 3 of Protocol 1 (A3P1) of the Convention, suggesting that it is prime time for the Strasbourg court to rethink the issue.
Referenda are different
The Scottish Independence Referendum (Franchise) Act 2013, s 2 states that the franchise for the referendum is to be the same as for Scottish local government elections.
Hirst v United Kingdom (No 2) 2005 ECHR 681 held that the UK’s “blanket ban” on prisoner voting is a disproportionate violation of their A3P1 rights. This applies to elections but not referenda (X v UK, Application 7096/74, 3 October 1975), because of the wording of A3P1: “The High Contracting Parties shall 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.”
In Moohan, the Inner House (at para 24) approved the Outer House finding that domestic courts will usually follow clear and constant Strasbourg jurisprudence, but will not necessarily extend it. It therefore refused to find that A3P1 extended to referenda.
The court did not delve into the case law in any detail. It recognised that Strasbourg might revisit the scope of A3P1 ( CSOH 199 at para 33). However, it held that there is no reason to treat the independence referendum as equivalent to an election, because it is not a vote held on a regular basis to determine important issues.
In McLean & Cole v UK, Applications 12626/13 and 2522/12, the ECtHR refused to consider the applicants’ claim while the UK Government was considering legislative reforms. Clearly this was a diplomatic judgment in an attempt to recognise the consultations undertaken by the UK Government after Hirst (case comment, European Human Rights Law Review 2013, 560 at 562). However, any reforms will not apply to referenda. The UK Government will not go further than it has to. Therefore it is reasonable to propose that the ECtHR review its jurisprudence on A3P1’s applicability to the independence referendum.
Line of authority
The cases relating to the right to vote in referenda (cited by Lord Glennie,  CSOH 199 at para 22) are relatively old, mainly from 1975 and the 1990s, and have never covered a vote such as Scottish independence. In the Court of Session, little was made in argument of the unique nature of the independence referendum and the changes that it could bring (Tickell, “Prisoner voting gambits”, Edinburgh Law Review 2014, 289 at 292-293), perhaps due to the desire to leave open the possibility of A3P1 protecting the right to vote in other referenda.
Lord Glennie relied on the fact that X v UK has been followed “by at least 10 subsequent decisions on admissibility”, in stating that A3P1 does not apply to referenda. Therefore it may be necessary to distinguish the independence referendum.
In these admissibility decisions the ECtHR did not get as far as hearing detailed arguments on the Hirst principles: that “the right to vote is not a privilege”, and “the presumption in a democratic state must be in favour of inclusion”.
Some of the cases are distinguishable from the facts of Moohan at the outset, for example McLean and Cole, which concerned the referendum on the use of the alternative vote, and Bocellari v Italy, Application 399/02, 28 October 2004, which concerned referenda on legislative reforms. Clearly these did not concern “choice of the legislature” directly.
The other cases concerned the applicability of A3P1 to the right to vote, in referendums gauging the public’s view on EU/EEC/EEA membership. The argument made by these applicants was that the referendum concerned “which legislature” would govern them, and therefore fell under the words “choice of the legislature” used in A3P1. The court has rejected this construction at the admissibility stage on numerous occasions, which presented the petitioners in Moohan with a problem.
They argued therefore that in these cases the referendum was only consultative, and not binding on the Government, unlike the Scottish referendum. The Court of Session acknowledged the point, but rejected it on the basis of the “clear and constant” decisions on A3P1.
Moohan held that, when A3P1 is read as a whole, it can only apply to ordinary elections because of the requirement for them to be held at regular intervals. However, when the Convention is read as a whole – and as a living instrument – it is suggested that it is fairly convincing that A3P1 should apply to the independence referendum (Paul Reid, “Independence, the referendum, the franchise and prisoners: stormy waters ahead?”, UK Constitutional Law Blog, 13 March 2013, available at http://ukconstitutionallaw.org).
The ECtHR has said that states “have a wide margin of appreciation in this sphere, but it is for the court to determine in the last resort whether the requirements of [A3P1] have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness” (Santoro v Italy, Application 36681/97, January 2003).
This succinctly demonstrates the importance of applying the Convention in a holistic manner. By excluding prisoners from voting in the referendum, the Scottish Government is reducing the effectiveness of the right to vote in parliamentary elections, which – at least technically – is a right that they have.
The preamble explains that Convention rights “are best maintained on the one hand by effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend”.
In Castelli v Italy, Application 35790/97, a referendum about political funding was ignored when the Government reintroduced the system some years later. The applicants complained that on a combined reading of the preamble and A3P1 there had been a manifest disregard of the popular will, amounting to an infringement of the democratic system.
Without considering this argument, the ECtHR applied X v UK and held that A3P1 was not applicable to a referendum. Therefore, if the court were to admit a case on the independence referendum under A3P1 – on the basis that it is distinguishable from other types of referendum – the arguments submitted in Castelli could be properly dissected.
Article 10 of the Convention includes protection for calling for dissolution of the state (Incal v Turkey (2000) 29 EHRR 449), and article 11 protects political parties advocating that same aim through non-violent methods (Reid, “Stormy waters ahead?”, cited above). As Reid states, it would be “odd... if the ECHR could be held to secure the right to promote the dissolution of a state through non-violent means but not the right to participate in a referendum to achieve that aim”. This is hardly “effective political democracy”.
In Hirst, the article 10 complaint was held admissible, although the case was decided on A3P1. Clearly there is potential for the ECtHR to reopen the issue, in the context of a unique type of referendum.
Again, Lord Glennie (at para 40) found that there is “no clear and constant jurisprudence” from Strasbourg that article 10 protects the right to vote, on the basis of a series of admissibility decisions. Perhaps, therefore, it is time for another look? And for a deeper examination of the issues at the merits stage?
By excluding prisoners from voting in the referendum, the Scottish Government is reducing the effectiveness of the right to vote in parliamentary elections
In the end...
Ultimately, Moohan’s case may have the same treatment in Strasbourg because of the tension on prisoner voting between the ECtHR and the UK Government. There is an opening in the case law for the Strasbourg court to alter its course: it could either hold that the scope of A3P1 has widened (so it now applies to referendums), or that the Scottish independence referendum is distinguishable from previous cases.
Whether or not the ECtHR will take this bold stand against the UK establishment remains to be seen. It will be interesting to see how the Scottish Government reacts if it does.
Ultimately, the backlog at the ECtHR means it is virtually impossible that there could be a decision before September 2014 (and even less likely that it would be in time for it to be implemented). Therefore the only remedies available would be a declaration of a violation and damages – something to make the idea of prisoner votes even less popular all round.
Louise Shaw is a trainee solicitor in Glasgow