Communicated on 12 January 2016
FIRST SECTION
Application no. 22962/15 and 23345/15
Leslie MOOHAN against the United Kingdom
and Andrew GILLON against the United Kingdom
STATEMENT OF FACTS
The applicants are Mr Leslie Moohan and Mr Andrew Gillon, born in 1982 and 1968 respectively. Both are British nationals and are currently in detention. They are represented before the Court by Mr T. Kelly of Taylor & Kelly, a firm of solicitors based in Coatbridge.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 15 October 2012 the Scottish and United Kingdom Governments signed an agreement (“the Edinburgh Agreement”) on a referendum on independence for Scotland (“the independence referendum”). Both Governments agreed that the result of the referendum would be binding.
On 27 June 2013 the Scottish Parliament passed the Scottish Independence Referendum Franchise Bill defining the eligibility conditions for voting in the referendum. Convicted prisoners in detention were prohibited from voting. On 8 August 2013 the Scottish Independence Referendum Franchise Act (“the Franchise Act”) entered into force.
The applicants, who were convicted prisoners in detention, petitioned for judicial review of the Franchise Act. They argued, inter alia, that it was incompatible with their rights under Article 10 of the Convention and Article 3 of Protocol No. 1.
The petitions were dismissed by the Outer House of the Court of Session on 19 December 2013 and an appeal was refused by the Inner House of the Court of Session on 2 July 2014. Both courts found that neither Article 10 nor Article 3 of Protocol No. 1 applied to the independence referendum.
On 24 July 2014 the Supreme Court refused the applicants’ appeal by majority (five justices to two), reserving its reasons.
On 18 September 2014 the independence referendum took place. The question was whether Scotland should be an independent country. Turnout was eighty-five per cent. The electorate voted “no” by fifty-five per cent to forty-five per cent. The applicants were not eligible to vote in the referendum.
On 17 December 2014 the Supreme Court handed down its reasons for refusing the appeal. Lord Hodge, delivering the leading opinion for the majority (Lords Neuberger, Clarke and Reed and Lady Hale), considered first the arguments concerning the applicability of Article 3 of Protocol No. 1. He explained that, in his view, the ordinary meaning of the words in Article 3 strongly supported the view that the signatories to the Convention had undertaken to hold periodic elections to a democratically-elected legislature and that they did not have referendums in mind. That the object and purpose of the Article was so limited was, he considered, confirmed by the consistent case-law of the Convention organs which had declared complaints concerning referendums inadmissible. Lord Hodge found the case-law to be “unequivocal” and concluded that there was no real support for the applicants’ position. In particular, he rejected the suggestion that there was a difference between an accession referendum, at stake in a number of the decided cases, and the secession referendum at issue in the present applications, since in each case the powers of one legislature were reduced in favour of another. The fact that the independence referendum concerned a very important political decision was, he said, immaterial since if political importance was a criterion for inclusion in Article 3 of Protocol No. 1 then the election of the President of the Russian Federation would have come within its scope but the Court in Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, §§ 54-55 and 54-55, 4 July 2013, had found that it did not.
Lord Hodge referred to the finding of the United Nations Human Rights Committee that Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) applied to referendums on self-determination in New Caledonia (see “Relevant international legal material”, below). He considered that the different wording of Article 25 ICCPR, when compared with Article 3 of Protocol No. 1, explained the different interpretations of the scope of the provisions. He highlighted that the Court’s conclusion in Anchugov and Gladkov, cited above, that Article 3 of the Protocol did not apply to Presidential elections was different to the conclusion reached by the United Nations Human Rights Committee as to the applicability of Article 25 ICCPR to such elections (see “Relevant international legal materials”, below).
Lord Neuberger agreed with Lord Hodge for four reasons, based on the language of the Article. First, the word “elections” was not a word that naturally covered a referendum. Second, it would be absurd if there was an obligation on States to hold referendums “at reasonable intervals”. Third, the requirement that people were entitled to vote “in the choice of the legislature” did not naturally suggest a choice as to which legislature governed. Fourth, decisions of this Court indicated that the Article applied only to directly effective elections. He concluded:
“50. ... There is, I accept, some initial attraction in the argument that, if a provision such as A3P1 is meant to apply to the membership of a legislature, then it ought a fortiori to apply to the logically anterior, and arguably more fundamental, issue of the existence or nature of the legislature itself. However, quite apart from the fact that the article does not apply to such an issue as a matter of language, I do not consider that this argument can in fact withstand scrutiny. The purpose of A3P1 is to ensure that the membership of any national legislature is the subject of elections which must be (i) reasonable in terms of frequency, and (ii) on the basis of universal (or close to universal) suffrage. There is no reason in terms of practice or principle why this should apply to a vote on the form of the legislature.”
Lady Hale, who agreed with Lords Hodge and Neuberger, added:
“53. But I also agree with Lord Kerr and Lord Wilson that the evolutive approach to the interpretation of the Convention adopted by the European Court of Human Rights strongly suggests that it might indeed encompass a referendum such as this ...
54. However, while it is clear that A3P1 requires the holding of regular parliamentary elections, it is also clear that it does not require the holding of a referendum, even on such an important issue as Scottish independence ...”
Lords Kerr and Wilson, dissenting, considered that Article 3 of Protocol No. 1 applied to the independence referendum.
Lord Kerr did not accept that it was plain from the ordinary meaning of the words of that Article that it could not apply to referendums. He also derived support from the travaux préparatoires, which in his view suggested that the focus on legislatures was not intended to be a positive restriction of the application of Article 3 of Protocol No. 1 to legislative elections only, but rather a right of political participation that did not extend to elections of the executive.
He further referred to need to interpret the Convention as a “living instrument” and in light of its object and purpose. The object and purpose of Article 3 of the Protocol must, he considered, be to contribute to the overall purpose of the Convention as expressed in the preamble which envisaged the guarantee of an “effective political democracy” as the foundation for all other rights. He said that it was difficult to see how that purpose would be other than frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to “this most fundamental of votes”. He was of the view that a referendum on whether a country should become independent of others with which it had been united for centuries and whether, in consequence, it should have a radically different form of government was “surely intimately associated with citizens’ expression of opinion about the choice of legislature”. Thus, given that a referendum as to whether Scotland should become an independent nation would have made a critical difference to the form of government to which citizens in Scotland would be subject, the right to vote in this particular referendum should have been recognised as an undeniable aspect of the applicants’ right under Article 3 of Protocol No. 1.
As to the case-law of this Court, Lord Kerr drew a distinction between referendums which merely had an effect on the powers and operation of a legislature and those which necessarily determined the type of legislature that citizens of a country would have. The latter, he said, “surely” involved the choice of legislature. He continued:
“71. ... Deciding whether Scotland should be independent is inextricably bound up with the question of what sort of legislature it will have; whether it will be a sovereign Parliament or one which must act within the range of powers devolved to it. I do not consider that Strasbourg can be said to have set its face against recognising that A3P1 should cover referendums that, in effect, determine the choice of legislature for a country’s people.”
He pointed out that the only decision of the Convention organs which contained any reasoning was X. v. the United Kingdom, no. 7096/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 3, p. 165, a case concerning a referendum on the United Kingdom’s continued membership of the European Economic Community. The Commission had identified two features of that referendum which had led it to conclude that Article 3 was not applicable: the referendum was of a purely consultative character, and there was no legal obligation to organise it. Lord Kerr considered that the independence referendum differed in both respects: the Scottish and United Kingdom Governments had agreed that the result of the referendum would be binding and the Scottish Independence Referendum Act 2013 imposed the legal obligation to organise it (see “Relevant domestic law”, below). Lord Kerr emphasised that the political parties took up markedly different positions on the Scottish referendum and, to that extent, the choice made by the voter reflected his predilection for the stance of each. It was further noteworthy that the independence referendum did not involve the endorsement of a decision already taken by a legislature: on the contrary, it concerned the choice of the mode of government for that country. He continued:
“75. ... The philosophical underpinning for A3P1 must surely be that citizens should be entitled to have influence in how they are to be governed. To deny them participation in the stark choice between the two forms of government that the referendum posed must strike at the root of the values which A3P1 are designed to protect.”
Given this Court’s position as to the vital importance of effective political democracy, Lord Kerr concluded that to find that the choice of government by which one was to be ruled lay outside the sphere of protection that the Convention provided would be remarkable indeed.
Lord Wilson agreed with Lord Kerr. He considered that the drafters of Article 3 of the Protocol did not have in mind a secession referendum but that, had they had it in mind, they would have expressly provided that a right to vote in it fell within its ambit. He explained:
“93. ... [W]hat is intriguing is that the drafters alighted upon a phrase – ‘choice of the legislature’ – which happens, as I have explained, to be a particularly apt description of the exercise in which Scottish voters were engaged on 18 September. Yes, indirectly and generically, they might also be said to have been choosing their ‘legislators’ but on any view they were choosing their ‘legislature’ ...”
As to the case-law of the Convention organs, he said:
“102. The Lord Advocate contended that there is a clear and constant line of determinations by the ECtHR that A3P1 does not apply to referenda. This is true. But it is too glib. For the court has never had occasion to consider the application of A3P1 to a secession referendum ...
103. The majority of the court considers that the case law of the ECtHR is ... ‘unequivocal’. I am driven to say that I totally disagree. There is no decision of the ECtHR in point ...”
On the question of the applicability of Article 10, the Supreme Court unanimously found that it did not apply. Lord Hodge, with whom the other justices agreed, noted that the Convention organs had repeatedly found that Article 10 did not protect the right to vote or other rights already secured by Article 3 of Protocol No. 1 as the lex specialis. In any event, he considered that there was nothing in this Court’s case-law to suggest that a claim under Article 10 would confer a wider right of political participation by voting than that protected by Article 3 of Protocol No. 1.
B. Relevant domestic law
The Scottish Independence Referendum Act 2013 imposed the legal obligation to organise the independence referendum.
The Scottish Independence Referendum Franchise Act 2013 set out the conditions for eligibility to vote in the independence referendum. The effect of the Act was that a convicted person was legally incapable of voting in the independence referendum if he was, on the date of the referendum, detained in a penal institution in pursuance of the sentence imposed on him.
C. Relevant Council of Europe materials
In 2005 the Parliamentary Assembly of the Council of Europe adopted recommendation 1704 (2005) on referendums: towards good practices in Europe. The Parliamentary Assembly explained that referendums were one of the instruments which enabled citizens to participate in the political decision-making process. It noted that in recent years, there had been an increase in the number of referendums held in Council of Europe Member States. It recommended the use of referendums as a means of reinforcing the democratic legitimacy of political decisions, enhancing the accountability of representative institutions, increasing the openness and transparency of decision-making and stimulating the direct involvement of the electorate in the political process.
The Venice Commission Code of Good Practice in Referendums, adopted by the Congress of Local and Regional Authorities in Resolution 235 (2007), declares that any deprivation of the right to vote in referendums must be based on mental incapacity or a criminal conviction for a serious offence and must observe the proportionality principle.
D. Relevant international legal materials
Article 25 ICCPR provides:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
Article 2 involves an undertaking to respect ICCPR rights without distinction of any kind.
In General Comment 25 (57), the Human Rights Committee explained that the rights in Article 25 were related to the right to self-determination. Article 1 ICCPR guaranteed peoples the right to freely determine their political status and choose the form of their constitution or Government; Article 25 guaranteed the right of individuals to participate in those processes which constituted the conduct of public affairs. Citizens participated directly in the conduct of public affairs when they exercised power as members of legislative bodies or by holding executive office. The Committee continued:
“6. ... Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b).”
It added that where direct participation was established, no distinction should be made as regards participation on the grounds mentioned in Article 2 and no unreasonable restrictions should be imposed.
In Gillot v. France (Communication No. 932/2000, 15 July 2002) the Human Rights Committee accepted that a complaint concerning referendums in New Caledonia organised as part of a self-determination process fell within the scope of Article 25. In Yevdokimov and Rezanov v. Russian Federation (Communication No. 1410/2005, 21 March 2011) the Human Rights Committee found that Article 25 applied where the complaint concerned Presidential elections.
COMPLAINT
The applicants complain under Article 10 of the Convention and under Article 3 of Protocol No. 1 to the Convention that they were subject to a “blanket ban” on voting in the independence referendum.
QUESTIONS TO THE PARTIES
1. Did the referendum on Scottish independence held on 18 September 2014 fall within the scope of Article 3 of Protocol No. 1?
2. If so, did the prohibition on convicted prisoners’ eligibility to vote as set out in the Franchise Act breach that Article (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005‑IX)?
3. Did the referendum on Scottish independence held on 18 September 2014 fall within the scope of Article 10 of the Convention?
4. If so, was the prohibition on convicted prisoners’ eligibility to vote as set out in the Franchise Act justified under the terms of Article 10 § 2. In particular, can that prohibition be regarded as having been “necessary in a democratic society”?
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