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Prisoners lose challenge to referendum voting bar

19 December 2013

Three prisoners have lost their legal action to challenge the statutory bar on their voting in the Scottish indepndence referendum.

Lord Glennie in the Court of Session dismissed judicial review proceedings brought by Leslie Moohan, Gary Gibson and Andrew Gillon claimed that the ban, in the Scottish Independence Referendum (Franchise) Act 2013, was beyond the competence of the Scottish Parliament.

Their grounds were based on article 3 of the First Protocol and article 10 of the European Convention on Human Rights; on what were said to be "fundamental" or "constitutional" rights enshrined in the common law, namely the rule of law, the right to vote, and respect for international obligations; and, where the result of the referendum would or might lead to the loss of European Union rights, the ban being contrary to EU law.

Lord Glennie rejected each ground of challenge. As regards the European Convention, he said it had been consistently held by the Human Rights Court that article 3 of Protocol 1 "applies to voting in elections for the legislature and has no application to voting in a referendum or, for that matter, in an election to elect a president or head of state". While that position might change at some point in the future, it could not be said with any degree of confidence that the court would take that step at present.

Further, there was  "no clear and constant jurisprudence" to the effect that article 10 (freedom of expression) protected the right to vote, "whether in legislative elections or in any other forum". "In those circumstances, following the approach that this court should keep pace with Strasbourg jurisprudence but not go further, I reject this part of the petitioners' case", he concluded.

Regarding the common law, Lord Glennie said: "Though I accept the existence of a fundamental or constitutional right to vote in general terms, I have come to the conclusion that that right does not extend to voting in a referendum. He gave three main reasons: the right had not developed separately from the legislation governing the right to vote; the right was limited in the United Kingdom in any event, given the existence of the House of Lords; and the right was subject to proportionate and legitimate restrictions, and it was untenable to say that the UK Parliament had been acting unconstitutionally when enacting the general ban on prisoners voting.

As for international obligations, it was only the Secretary of State who could challenge the validity of an Act of the Scottish Parliament on the ground of incompatibility with such obligations; and the court was not equipped to determine what might be the outcome of the referendum in relation to EU membership. "The process which [the Parliament] is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship. The point may arise in the future where decisions are taken which might affect those questions. But that time has not yet come", he commented.

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