Applications nos. 22962/15
Leslie MOOHAN against the United Kingdom
and Andrew GILLON against the United Kingdom
The European Court of Human Rights (First Section), sitting on 13 June 2017 as a Chamber composed of:
Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having regard to the above applications lodged on 8 May 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. The applicants are Mr Leslie Moohan and Mr Andrew Gillon, born in 1982 and 1968 respectively. Both are British nationals currently serving sentences of life imprisonment for murder. They were represented before the Court by Mr T. Kelly of Taylor & Kelly, a firm of solicitors based in Coatbridge.
2. The British Government (“the Government”) were represented by their Agent, Ms M. Valchero of the Foreign and Commonwealth Office.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The independence referendum
4. 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 independence referendum would be respected.
5. On 27 June 2013 the Scottish Parliament passed the Scottish Independence Referendum Franchise Bill defining the eligibility conditions for voting in the independence 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.
6. The applicants, who would not be eligible to vote in the independence referendum on account of their incarceration, 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.
7. 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.
8. On 24 July 2014 the Supreme Court refused the applicants’ appeal by majority (five justices to two), reserving its reasons.
9. On 18 September 2014 the independence referendum took place. Turnout was eighty-five per cent. The question was whether Scotland should be an independent country. The electorate voted “no” by fifty-five per cent to forty-five per cent.
2. The Supreme Court’s reasons for refusing the appeal
10. On 17 December 2014 the Supreme Court handed down its reasons for refusing the appeal. Lord Hodge delivered the leading opinion for the majority (Lords Neuberger, Clarke and Reed and Lady Hale agreeing). With regard to the applicability of Article 3 of Protocol No. 1., he explained that, in his view, the ordinary meaning of the words strongly suggested 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 “unequivocal” case-law of the Convention organs which had consistently declared complaints concerning referendums inadmissible.
11. Lord Hodge therefore found that there was no real support for the applicants’ position. In particular, he rejected their 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 a “yes” vote would result in the powers of one legislature being reduced in favour of another. The fact that the independence referendum concerned a very important political decision was immaterial, since if political importance was a criterion for inclusion in Article 3 of Protocol No. 1 the Court would not have found the election of the President of the Russian Federation to be outside its scope (Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, §§ 54-55 and 54-55, 4 July 2013).
12. Finally, Lord Hodge considered the United Nations Human Rights Committee’s finding in Gillot v. France (Communication No. 932/2000, 15 July 2002) that Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) applied to referendums on self-determination in New Caledonia (see paragraph 32 below). He found, however, that the difference in the wording of Article 25 ICCPR and Article 3 of Protocol No. 1 explained the different interpretation of the scope of the two provisions. In this regard, he recalled that in Anchugov and Gladkov, cited above, the Court had referred to the United Nations Human Rights Committee’s finding in Yevdokimov and Rezanov v. Russian Federation (Communication No. 1410/2005, 21 March 2011) that Article 25 ICCPR applied to Presidential elections (see paragraph 32 below), while concluding that they were outside the scope of Article 3 of Protocol No. 1.
13. Lord Neuberger agreed with Lord Hodge for four reasons, all based on the language of the Article. First, the word “elections” was not a word that naturally covered a referendum. Secondly, it would be absurd if there was an obligation on States to hold referendums “at reasonable intervals”. Thirdly, 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. Fourthly, 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.”
14. 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 ...”
15. Lords Kerr and Wilson, dissenting, considered that Article 3 of Protocol No. 1 applied to the independence referendum.
16. 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.
17. He further referred to the need to interpret the Convention as a “living instrument” 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”.
18. 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. 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.”
19. 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 paragraph 24 below).
20. 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.
21. 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’ ...”
22. 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 ...”
23. 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
24. The Scottish Independence Referendum Act 2013 imposed the legal obligation to organise the independence referendum.
25. The Scottish Independence Referendum Franchise Act 2013 set out the conditions for eligibility to vote in the independence referendum. Pursuant to the Act, 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
26. 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.
27. 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
28. 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.”
29. Article 2 involves an undertaking to respect ICCPR rights without distinction of any kind.
30. 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).”
31. 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.
32. 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.
33. The applicants complain under Article 10 of the Convention and under Article 3 of Protocol No. 1 that they were subject to a “blanket ban” on voting in the independence referendum.
34. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. Article 3 of Protocol No. 1
35. The applicants complain that the “blanket ban” preventing convicted prisoners from voting in the independence referendum breached their rights under Article 3 of Protocol No. 1 to the Convention.
36. Article 3 of Protocol No. 1 provides as follows:
“The High Contracting Parties 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.”
1. The parties’ submissions
37. The Government submitted that the complaint was incompatible ratione materiae with the provisions of the Convention and its Protocols since the independence referendum did not fall within the scope of Article 3 of Protocol No. 1. They therefore contended that this complaint should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
38. In this regard, they relied on the reasoning of the majority in the Supreme Court: in short, that, on the ordinary meaning of its language, Article 3 of Protocol No. 1 did not apply to referendums; and that this interpretation was reflected in a consistent line of case-law, beginning with X v. the United Kingdom (dec.), no. 7096/75, 3 October 1975 and ending with McLean and Cole v. the United Kingdom (dec.), nos. 12626/13 and 2522/12, 11 June 2013 (see paragraphs 10-14 above).
39. The applicants, on the other hand, argued that the Court should reject the Government’s submissions for the reasons given by the minority in the Supreme Court: namely, that the ordinary meaning of Article 3 of Protocol No. 1 was not clear; that the overall purpose of the Convention envisaged the guarantee of an “effective political democracy”, and this would be frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to “this most fundamental of votes”; and that the reasoning in the case-law relied upon by the Government was either deficient or not applicable to the independence referendum (see paragraphs 15-22 above).
2. The Court’s assessment
40. The principal question for the Court to decide is whether the independence referendum can be considered to fall within the scope of Article 3 of Protocol No. 1. In this regard, it recalls that the Convention organs have not, to date, considered the language of Article 3 of Protocol No. 1 to be in any way ambiguous. On the contrary, they have unequivocally held that the Article is limited to elections concerning the choice of the legislature and does not apply to referendums (see X. v. the United Kingdom, cited above; Bader v. Austria (dec.), no. 26633/95, Commission decision of 15 May 1996, unreported; Nurminen v. Finland (dec.), no. 27881/95, 26 February 1997; Castelli and Others v. Italy, nos. 35790/97 and 38438/97, Commission decision of 14 September 1998, DR 94, p. 102; Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI; Borghi v. Italy (dec.), no. 54767/00, ECHR 2002-V (extracts)); Z. v. Latvia (dec.), no. 14755/03, 26 January 2006; Niedzwiedz v. Poland (dec.), no. 1345/06, 11 March 2008; and McLean and Cole, cited above, § 32). Rather than undermine their authority, the brevity of the reasoning in these decisions strongly indicates that both the Court and the former Commission considered the issue to be clear-cut.
41. It is true that, as Lord Kerr and Lord Wilson observed, in the independence referendum the people of Scotland were effectively voting to determine the type of legislature that they would have. Consequently, at first glance it might appear anomalous for such a referendum to fall outside the sphere of protection provided by Article 3 of Protocol No. 1, while elections concerning the choice of the legislature fall within it. However, such a conclusion is consistent with both the wording of the Article - which is more narrowly drafted than Article 25 ICCPR - and its consistent interpretation by the Convention organs. While they have not, to date, considered a secession referendum, there have been a number of cases concerning referendums on Contracting States’ accession to or continued membership of the European Union (see X. v. the United Kingdom, Nurminen v. Finland, Z. v. Latvia and Niedzwiedz v. Poland, all cited above). In each of these cases the people were also voting to determine the type of legislature they would have, but the Convention organs did not consider this factor sufficient to bring the referendums within the ambit of Article 3 of Protocol No. 1.
42. Given that there are numerous ways of organising and running electoral systems and a wealth of differences in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision (see, for example, Scoppola v. Italy (no. 3) [GC], no. 126/05, § 83, 22 May 2012 and Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX), the Court has not excluded the possibility that a democratic process described as a “referendum” by a Contracting State could potentially fall within the ambit of Article 3 of Protocol No. 1 (McLean and Cole, cited above, § 33). However, in order to do so the process would need to take place “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”. It is true that in X v. the United Kingdom, cited above, the Commission referred to the fact that the referendum in issue was purely consultative and there had been no legal obligation to hold it. However, while these factors supported the Commission’s conclusion that the referendum did not fall within the scope of Article 3 of Protocol No. 1, they do not appear to have been decisive; rather, the decisive factor was that the referendum was not “an election concerning the choice of the legislature” and, having regard to the case-law of the Commission and the Court, the same must be said of the referendum at issue in the present case.
43. It follows that applicants’ Article 3 of Protocol No. 1 complaint is incompatible ratione materiae with the provisions of the Convention and its Protocols within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.
C. Article 10
44. The applicants further complain that the “blanket ban” preventing convicted prisoners from voting in the independence referendum breached their rights under Article 10 of the Convention.
45. Article 10 provides as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. The parties’ submissions
46. The Government submitted that pursuant to the case-law of the Court and the former Commission, Article 10 did not protect the right to vote. Since the right to vote was expressly protected by Article 3 of Protocol No.1 (the lex specialis), Article 10 (the lex generalis) should not be interpreted as intruding into this area.
47. The applicants, on the other hand, submitted that the Court should find that their complaints fell within the ambit of Article 10 because such a decision would put the Convention in harmony with the ICCPR; would give effect to the object and purpose of the Convention as expressed in its preamble; and would ensure that the rights protected by Article 10 were “practical and effective”.
2. The Court’s assessment
48. The Convention organs have repeatedly found that Article 10 does not protect the right to vote, either in an election or a referendum (see X. v. the Netherlands (dec.), no. 6573/74, 19 December 1974; X. v. the United Kingdom, cited above; Luksch v. Italy (dec.), no. 27614/95, 21 May 1997; and Baskauskaite v. Lithuania (dec.), no. 41090/98, 21 October 1998).
49. It follows that applicants’ Article 10 complaint is also incompatible ratione materiae with the provisions of the Convention and its Protocols within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 6 July 2017.
Abel Campos Linos-Alexandre