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Appeal court affirms referendum prisoner voting ban

2 July 2014

Inner House judges today upheld a ruling that convicted prisoners are not entitled to vote in the Scottish independence referendum.

The Lord President (Lord Gill), Lady Paton and Lord Menzies affirmed an earlier decision by Lord Glennie that Leslie Moohan and Andrew Gillon, who are both serving life sentences for murder, had no claim under the European Convention on Human Rights, EU law or common law that would override the prohibition in the Scottish Independence Referendum (Franchise) Act 2013.

Among other points, the petitioners argued that there was no "clear and constant body of Strasbourg jurisprudence" against the principle that article 3 of Protocol 1 to the Convention applied to referenda, particularly a referendum of this nature, and the Human Rights Court would seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that its Covenant was habile to include participation in referenda.

Lady Paton, delivering the opinion of the court, rejected this, agreeing with the Lord Ordinary that clear Strasbourg authority was required and, further, that such a line of authority did exist against article 3 applying to referenda.

Dealing with other arguments, she added that article 10 (freedom of expression) did not guarantee the right to vote; that there was no "clearly identifiable common law fundamental right to vote"; that the common law should not be developed in a way that conflicted with statute; that the Scottish parliament did not require to legislate in accordance with the UN Covenant; and that the Lord Ordinary had correctly decided that there was no direct link with future EU membership such as to give rise to questions of EU law.

Click here to view the opinion.

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