In Moohan, Gibson and Gillon, Petitioners [2013] CSOH 199 the Court of Session ruled on the legality of the blanket ban on voting by prisoners in the independence referendum, rejecting the challenge brought to it by three disenfranchised offenders serving lengthy sentences. The ban is contained in sections 2 and 3 of the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act).  Section 3 stipulates expressly that offenders detained in prison are legally incapable of voting in the referendum. Section 2 provides two further mechanisms to ensure the disenfranchisement of prisoners, creating the added security of a statutory triple lock: s2(1)(b)(i) provides that only persons included on the register of local electors may vote in the referendum. Prisoners are barred from so registering by the Representation of the People Act 1983 (RPA 1983). Section 2(2)(a) provides that those legally incapacitated from voting in the referendum are those persons who would be legally incapable of voting at a local government election in Scotland. This, again by virtue of the application of the RPA 1983 to local elections in Scotland, includes prisoners.

The petitioners presented three arguments to challenge the ban: (1) it was argued to be  unlawful on ECHR grounds, and therefore beyond the legislative competence of the Scottish Parliament; (2) it was contended that the Franchise Act was in this aspect inconsistent with the protection offered by the common law to the 'fundamental' or 'constitutional' right to vote and thus ought to be struck down by the court in exercise of its common law power to judicially review Acts of the Scottish Parliament; and (3) it was claimed to be contrary to EU law. All three arguments were rejected by Lord Glennie in an opinion giving careful and detailed analysis of each claim.  

Two ECHR arguments were advanced by the petitioners: the first founded on the right to free elections protected by Article 3 Protocol 1 (A3P1) of the ECHR; the second relied upon Article 10, claiming that voting rights are additionally protected under that provision as a form of political expression.  The A3P1 argument faced - an ultimately insurmountable - doctrinal hurdle in the shape of the Strasbourg Court's consistent refusal to rule that that provision of the Convention applies to referendums. A3P1 provides a guarantee of voting rights in legislative elections.  All attempts to persuade the Court of Human Rights to extend its reach to referendums have so far failed.  Lord Glennie, referring to this 'unbroken line' of precedents ranging from 1975 to 2013 perhaps unsurprisingly declined to make such an interpretative leap in this case. The petitioners had argued that because Convention rights have become domestic statutory rights by virtue of the operation of the Human Rights Act and the Scotland Act, their meaning was a matter for the domestic courts, rather than for Strasbourg. Lord Glennie stressed however the limits on this interpretative freedom imposed by domestic precedents (Manchester City Council v Pinnock [2011]2 AC 104; R(Ullah) v Special Adjudicator [2004] 2 ACT 323; R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 and Smith v M o D [2013] 3 WLR 69) making clear that UK courts should not innovate to extend the scope of a Convention right unless there are clear signs from Strasbourg supporting such an enlarged reading of  the right. There were no such signs regarding the reading of A3P1 sought by the petitioners here.  Lord Glennie was unconvinced by petitioners' argument that a single sentence in the case of McLean & Cole v UK [2013] 57 EHRR  SE8 (referred to in a previous post on this blog) intimated a likely shift by the Strasbourg Court to liberalize its reading of A3P1 to include referendums.  His reading of that comment is that it might relate to  the possible extension of the application of A3P1 to countries where referendums become so frequent as to be, in effect, a substitute for decision-making by elected representatives so that the effective protection of voting rights would justify treating referendums as a form of election for A3P1 purposes [para 23]. 

The second ECHR argument presented for the petitioners was that the right to vote in a referendum is an act of political expression protected by Article 10(1).  The respondents countered that Article 10 did not protect any voting rights, whether for a legislature or in referendum:  those rights are protected exclusively by A3P1 in the Convention scheme. Lord Glennie reviewed the Strasbourg case law considering claims that the right to vote is protected as an act of expression by that Article, and concluded that it provides no clear and constant line to that effect.  As he observed, the jurisprudence is inconsistent and contains very abbreviated reasoning on the matter.  While several cases have ruled that such Article 10 claims are admissible, the Court has never reached a ruling on the merits of that argument, preferring instead to rule on the basis of A3P1. This led Lord Glennie to conclude that the Strasbourg jurisprudence disclosed no trend towards establishing protection for voting rights under Article 10.  His conclusion on this point was strengthened by the principle that the Convention be interpreted in a manner that promotes internal consistency and harmony between its various provisions: it would indeed, as he observes 'be odd, if Article 10, the general provision, could be interpreted as giving a right to vote in a referendum where A3P1, the specific provision, did not' [para 40].  Given the weak and mixed signals the Strasbourg cases offer on this Article 10 point, it is unsurprising this argument failed also.  

The argument based on EU law was to the effect that the referendum process might culminate in an eventual alteration of the status of Scottish nationals in a manner prejudicial to their enjoyment of EU rights and citizenship.  This it was argued, rendered the relevant provisions of the Franchise Act incompetent under s29(1) of the Scotland Act on the basis of their incompatibility with EU law. This claim hinged on unproven – and highly contestable - premises about the consequences of a yes vote for Scotland’s relationship with and future membership of the EU.  Presuming for the purposes of argument that there was “at least a doubt” [para 86] as to the nature of those consequences, Lord Glennie nonetheless rejected the claim that the Franchise Act flouted EU law by reason of the absence of an established factual link with a matter covered by EU law: in enacting the Franchise Act the Scottish Parliament was not purporting to legislate on the matter of EU membership or citizenship. The referendum process of which that Act is part is not one with a direct impact on those political questions.  His opinion makes clear too that even had he regarded EU law as being engaged, he would likely not have concluded that the ban was incompatible with it.  Referring to the Supreme Court’s recent ruling on the UK prisoner voting ban [McGeoch v Lord President of the Council; Chester v Justice Secretary ]2013[ UKSC 63], in which distinct arguments based on EU law failed, Lord Glennie reiterated the view that EU law protections for voting rights are narrow in scope (being concerned principally with non-discrimination between Union citizens) and expressed doubt that that law would necessarily replicate the Strasbourg jurisprudence condemning blanket bans [paras 91-92].

 The most interesting aspect of the case from a broader constitutional law perspective is its treatment of the argument that voting is a common law right, both ‘constitutional’ and ‘fundamental’. Allied to this claim were supporting arguments founding on common law principles concerning the rule of law and respect for international obligations [paras 45-82]. This branch of argument sought to persuade the court to invalidate the provisions of the Franchise Act in exercise of the judicial power to review Acts of the Scottish Parliament on common law grounds concerning their unconstitutionality, an authority asserted in Axa General Insurance Co v LA 2012 SC (UKSC) 122. Agreeing that “there is no reason in principle why [the Scottish Parliament’s powers] should not … be limited by reference to the rule of law and certain fundamental rights” as well as by the express terms of the Scotland Act [para 47], Lord Glennie proceeded to a full analysis of this claim.  This is the first case in the UK to consider directly - and at some length - the argument that voting is not only a statutory right but a common law creature. Petitioners drew heavily on obiter remarks in Watkins v Secretary of State for the Home Department [2006] 2 AC 395 identifying the right to vote as ‘fundamental’ and ‘constitutional’. Lord Glennie confirmed here that “the existence of a constitutional or fundamental right to vote can now be asserted at a level of generality which would, I suspect, brook no contradiction in a modern western democracy” [para 58].  It did not follow, however, that there was any general right to vote in referendums. Even the constitutional right to vote in elections is, as he observes, limited to the lower house of the legislature.  His reasoning offers three grounds for rejecting the existence of a common law constitutional right to vote in referendums: (1) the common law right to vote in effect shadows its statutory counterparts: it does not have an existence and content independent of the legislation specifying who is enfranchised. The history of the evolution of the franchise contradicts the notion that the common law has never recognised a free-standing and universal right to vote [para 70]; (2) the common law right to vote is satisfied by the existing statutory protections for the franchise and cannot have specific content that contradicts those legislative controls: there is no constitutional right to insist upon a referendum, nor to vote in one when such events are held. To hold otherwise would be to create extra-statutory principles that would call into question, for example, the absence of any right to vote for the House of Lords [para 71]; (3) the common law right asserted by petitioners is essentially a claim that universal – unrestricted - suffrage is a constitutional principle that may only be qualified by laws that satisfy proportionality and serve legitimate aims.  Blanket bans on prisoner voting breach this principle and so are unlawful at common law, it was alleged. But to so hold here would be to condemn also the UK Parliament for acting unconstitutionally in its continuing maintenance of such a ban in the RPA 1983. This Lord Glennie was not prepared to do [para 73]. Nor was he prepared to hold that the Scottish Parliament was bound by the principle of respect for international obligations – including Art 25 of the International Covenant on Civil and Political Rights (ICCPR), which protects referendum voting rights – to legislate accordingly. This argument foundered when faced with the express terms of the Scotland Act [ss35 & 58(1)] which confine the controls on legislating contrary to international law obligations to interventions by the Secretary of State to block such action by the Scottish Parliament or Government. Lord Glennie concluded that it is clearly within the legislative competence of the Scottish Parliament to enact measures like the Franchise Act, which collide with guarantees such as those contained in the ICCPR. 

So voting is a common law right, but only in so far as legislation offers opportunities to exercise it. What then, is the purpose of this judicial recognition of the ‘constitutional’ right, if it has no identity – other than in its common law origins – separable from the legislative rules that regulate it? Perhaps it is better viewed as a rephrased guarantee of the principle of free elections in a representative democracy than as an actionable individual right with any real utility to most litigants challenging specific disenfranchisements.  It is, though, an important intimation by the court of its potential willingness to block severe retrenchment on established norms of universal suffrage. It adds to the established constitutional doctrine that the courts would not stand idly by if lawmakers at Westminster or Holyrood were to legislate to abolish judicial review or the whole system of Scots private law the principle that swingeing cuts to universal suffrage would be unconstitutional and susceptible to judicial invalidation on common law grounds.  Lesser adjustments to legal rules governing entitlement to vote – on grounds of age, for example, or reforming the prisoner ban - look likely to remain immune from successful challenge on common law grounds.  The Moohan judgment stands as an important affirmation that voting rights, in the UK constitution, are statutory constructs undergirded by common law constitutional principles.  The problem the petitioners faced here, as future litigants would too, is in persuading a court to reach into those common law foundations to overturn legislative decisions on the scope or content of voting rights. Would, for example, the right to vote in local elections be considered part of this constitutional right? It ought to be, as a matter of constitutional principle and because it is granted by the same legislation Lord Glennie cites in support of the common law right to vote in parliamentary elections. If so, that would extend the scope of the common law right beyond that offered by the Human Rights Act, which employs as a statutory right to vote A3P1, ECHR, a right which Strasbourg has repeatedly refused to extend to local elections.  And why should the statutory anchors of the common law right to vote be confined to the controls on the franchise contained in the Representation of the People Acts and other election legislation, as the opinion suggests? Why does the HRA’s incorporation of A3P1 not count also as one of the statutory expressions of the common law right vote in the UK constitution? Of course, if it were so regarded, courts could not so easily foreclose the common law claims of prisoners and others on the grounds that parliamentary prescriptions on the franchise are presumptively valid constitutionally. Fuller principled analysis of disenfranchisement would be warranted and required. Human rights principles about legitimate aims and proportionality would earn a merited role at the core of the constitutional right to vote, rather than languishing in a separate doctrinal category. Arguably, this type of bold reading is required if the common law right to vote is to have any real value other than as an abstract guarantee against any future abandonment of democratic elections.  There may be, as Moohan states, a ‘constitutional’ right to vote, but it remains a conceptual claim that lacks power as a practical instrument of legal reasoning. 

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