Supreme Court gives reasons for rejecting prisoner referendum votes
The drafters of the European Convention on Human Rights had general elections rather than referendums in mind when they provided for an obligation to hold periodic elections to a democratically elected legislature, a majority of the UK Supreme Court has held in the case brought by two serving prisoners who sought to vote in the Scottish independence referendum.
Written judgments handed down by the court today reveal that the July decision to dismiss the appeals by Leslie Moohan and Andrew Gillon against the rejection of their case by the Court of Session, was by a majority, with two of the seven judges prepared to back their case.
The case turned on article 3 of Protocol 1 to the Convention ("A3P1"), which provides that states undertake "to 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 the majority judgment, Lord Hodge, supported by the President Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed, said that the ordinary meaning of the words in A3P1 referred to an obligation to hold periodic elections to a democratically elected legislature; the requirement to hold such elections “at reasonable intervals” suggested that the drafters did not have referendums in mind. There was unequivocal case law from the European Court of Human Rights to show that the reach of A3P1 was limited to periodic general elections to the legislature, and the Supreme Court would normally follow such a “clear and constant line of decisions". The cases also showed that the political importance of a democratic decision was the not the criterion for its inclusion within A3P1.
Dealing with the appellants' arguments, Lord Hodge said that article 10 of the Convention, protecting freedom of expression, did not confer any wider right to vote than was provided by A3P1; that the prohibition on prisoners voting did not breach EU law because the outcome of the referendum would not in itself have been determinative of voters’ EU citizenship, and because EU law did not incorporate any right to vote; that the International Covenant on Civil and Political Rights, which protected the right to participate in referendums on self-determination, was different in wording and had not been incorporated into UK domestic law; and that the common law had not developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and proportionate.
Dissenting, Lord Kerr and Lord Wilson considered that the natural meaning of A3P1 not only encompassed elections to the legislature but also elections that would determine the form of the legislature. The purpose of the Convention would be frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to this most fundamental of votes: the primary aim of A3P1 was to ensure that citizens should have a full participative role in the selection of those who would govern them. Lord Wilson added that he ECtHR authorities on referendums were not directly in point, and it was open to the Supreme Court to go further than the Strasbourg case law in developing a Convention right.