FIRST DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 56
Lord President Lady Paton Lord Menzies	P643/13 P903/13   OPINION OF THE COURT delivered by LADY PATON   in the Reclaiming Motion   by   (1) LESLIE MOOHAN (AP) and (2) ANDREW URQUART BLACK GILLON (AP) Petitioners and Reclaimers;   against   THE LORD ADVOCATE Respondent:   in petition for   Judicial Review of sections2(1)(b)(i), 2(2)(a) and 3 of the Scottish Independence Referendum (Franchise) Act 2013 _______________

Petitioners and reclaimers:  A O’Neill QC, Pirie;  Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)

Respondent:  Moynihan QC, Ross;  Scottish Government Legal Directorate

 

2 July 2014

Serving prisoners unable to vote in the referendum on Scottish independence
[1]        On 18 September 2014, an independence referendum is to be held in Scotland.  Convicted offenders serving a prison sentence on that date will be ineligible to vote (sections 2 and 3 of the Scottish Independence Referendum (Franchise) Act 2013 and section 3(1) of the Representation of the People Act 1983).  In these petitions for judicial review, two prisoners challenge their exclusion from the franchise.  They seek:

(a)        declarator that sections 2(1)(b)(i), 2(2)(a) and 3 of the 2013 Act are “not law” under section 29 of the Scotland Act 1998, being incompatible with European Convention rights;

 

(b)        declarator that such a ban is unlawful as a matter of common law;

 

(c)        declarator that the statutory provisions contravene the legitimate
expectation that Scottish legislation will conform to the UK’s public international law obligations;

 

(d)        declarator that the statutory provisions are “not law” as they are
incompatible with EU law;

 

(e)        reduction of the statutory provisions.

 

First hearing and reclaiming motion

[2]        The cases came before Lord Glennie for a first hearing.  The Lord Ordinary dismissed the petitions, for the reasons given in his Opinion dated 19 December 2013.  The petitioners reclaimed.  Grounds of appeal, answers, notes of argument, and a joint bundle of authorities were provided for the assistance of the court.

 

Grounds of appeal

[3]        There are seven grounds of appeal.  Read short, these are:

1.         The Lord Ordinary misdirected himself as to the court’s duty under section 2(1) of the Human Rights Act 1998 to take into account judgments of the European Court of Human Rights (ECtHR) and other guidance from the Commission and the Committee of Ministers.

 

2.         The Lord Ordinary erred in deciding that article 3 of the First Protocol (A3P1) to the European Convention on Human Rights (ECHR) did not apply to the referendum.

 

3.         The Lord Ordinary erred in concluding that the legislation was not an interference with the right to freedom of expression under article 10 of the ECHR.

 

4.         The Lord Ordinary erred in deciding that the legislation was not contrary to the common law fundamental right to vote.

 

5.         The Lord Ordinary erred by failing to decide that the legislation was contrary to the rule of law as the referendum (a) would affect citizenship/nationality rights; (b) was contrary to Hirst v United Kingdom (No 2) (2006) 42 EHRR 41;  and (c) failed to comply with the UK’s obligations in international law, and in particular the obligations under article 25 of the International Covenant on Civil and Political Rights (“ICCPR”).

 

6.         The Lord Ordinary erred in deciding that the Scottish Parliament had the power to legislate contrary to the UK’s obligations under international law.

 

7.         The Lord Ordinary erred in deciding that the legislation was not contrary to EU law because “there is no direct link between the independence referendum and any decision as to the future membership of the EU”.

 

Relevant statutory provisions
Representation of the People Act 1983

[4]        The Representation of the People Act 1983 provides inter alia:

“2(2)    A person is not entitled to vote as an elector in any electoral area unless registered there in the register of local government electors to be used at the election …

 

3(1)      A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election …”

 

Scottish Independence Referendum (Franchise) Act 2013

[5]        Sections 2 and 3 of the Scottish Independence Referendum (Franchise) Act 2013 provide inter alia:

“2        Those entitled to vote in an independence referendum

(1)        A person is entitled to vote in an independence referendum if, on the date on which the poll at the referendum is held, the person is - …

(b) registered in either –

 

(i) the register of local government electors maintained under section 9(1)(b) of the 1983 Act for any area in Scotland …

 

(2)        For the purposes of this Act, a person is, on any date, subject to a legal incapacity to vote if the person –

 

(a) would be legally incapable (whether by virtue of any enactment or any rule of law) of voting at a local government election in Scotland held on that date, or

 

(b) is legally incapable, by virtue of section 3, of voting in an independence referendum held on that date.

 

3          Offenders in prison etc not to be entitled to vote

(1         A convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person …”

 

Human Rights Act 1998:  article 3 of the First Protocol (A3P1)

“Article 3

Right to Free Elections

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 …”

 

International treaties

International Covenant on Civil and Political Rights (ICCPR)

[6]        In 1976, the United Kingdom ratified the ICCPR, which provides inter alia:

“Article 25

Every citizen shall have the right and 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 …”

 

Submissions for the petitioners

[7]        The petitioners’ submissions were presented in both written and oral form.  What follows is a summary, not necessarily in the same order of presentation as that adopted at the hearing.

 

Grounds of appeal 1 and 2:  duty of the court under section 2(1) of the Human Rights Act 1998, and applicability of A3P1

 

[8]        Senior counsel submitted first, that there was no clear and constant body of  Strasbourg jurisprudence against the principle that A3P1 applied to referenda, particularly a referendum of the nature of the Scottish independence referendum (cf dicta in McLean and Cole v UK (2013) 57 EHRR SE8, paragraph 33).  Secondly, the ECtHR in Strasbourg would undoubtedly seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that article 25 of the ICCPR was habile to include participation in referenda (General Comment adopted by the Human Rights Committee (27 August 1996) paragraphs 5-6, 9-10 and 19;  Gillot v France (2003) 10 IHRR 22.)  Thus the ECtHR, if construing A3P1 in circumstances such as the present, would extend it to referenda, particularly in view of the nature of the Scottish independence referendum, which arose from a legal obligation, focused on the breaking-up of an existing state, and was sufficiently similar to parliamentary elections in that it involved “the choice of the legislature”.  Support for the petitioners’ contention could be found in the fact that the UK Supreme Court had shown a willingness to go further than existing Strasbourg jurisprudence where the particular facts and circumstances had not been before the Strasbourg court (In re G (Adoption:  Unmarried Couple) [2009] 1 AC 173;  Surrey County Council v P [2014] 2 WLR 642, paragraphs 62-63, 86.)  Against that background, and bearing in mind the court’s duty under section 2(1) of the Human Rights Act 1998, the Lord Ordinary had misdirected himself in relation to that duty, and should have construed A3P1 as applying to referenda.

 

Ground of appeal 3:  interference with the right to freedom of expression under article 10 of the ECHR

 

[9]        Article 10 of the ECHR (the right to freedom of expression) protected the right to vote (Hirst v United Kingdom (No 2) (2006) 42 EHRR 41;  Anchugov and Gladkov v Russia (application nos 11157/04 and 15162/05, 4 July 2013);  Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) (2011) 52 EHRR 8).  The legislation under challenge interfered with the right to freedom of expression.  There was no clear and constant line of ECtHR cases requiring the court to decide otherwise.  The court should therefore make the judicial choice that the legislation interfered with the right under article 10.  The Lord Ordinary erred in paragraphs [34]-[43] of his Opinion in concluding otherwise.

 

Ground of appeal 4:  legislation contrary to the common law fundamental right to vote

 

[10]      There was a common law fundamental right to vote.  In developing the common law, the court should comply with article 25 of the ICCPR (R v Lyons [2003] 1 AC 976;  Gillot v France (2003) 10 IHRR 22;  General Comment adopted by the Human Rights Committee (27 August 1996)).  The court could also draw on Commonwealth sources (R (Osborn) v Parole Board [2013] 3 WLR 1020;  R (West) v Parole Board [2005] 1 WLR 350).  The Scottish Parliament had no power to override fundamental rights:  express words would be required for such a power (cf Axa General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122 at paragraphs [152]-[153]).  Thus the Lord Ordinary erred in paragraphs [52] to [73] of his Opinion in failing to find that the legislation was contrary to the common law fundamental right to vote.

 

Ground of appeal 5:  legislation contrary to rule of law

[11]      It was accepted that article 25 of the ICCPR was an international treaty ratified by the UK, which had not been incorporated into UK law.  But it was significant that the United Nations Human Rights Committee had ruled that article 25 included participation in referenda (General Comment adopted by the Human Rights Committee, 27 August 1996, paragraphs 5-6, 9-10, and 19;  and Gillot v France (2003) 10 IHRR 22 paragraphs 8.2, 8.10 and 13.16).  As the case of Axa General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122 (Lord Hope at paragraph [51]) demonstrated, it was possible to review Acts of the Scottish Parliament.  It was submitted that, in such a review, the ICCPR (in particular article 25) and other international treaties could be relied upon in the domestic courts by any or all of five routes, as follows:

 

(i)         Developing the common law:  Where possible, issues should be decided in a manner compatible with international obligations such as the ICCPR (R v Lyons [2003] 1 AC 976, paragraphs 13 and 27).  If, as the petitioners contended, there was a common law fundamental right to vote, that right must be developed in compliance with the ICCPR and other international obligations. 

 

(ii)        Construing domestic legislation:  If domestic legislation was capable of bearing an interpretation which was consistent with international obligations (and in particular article 25 of the ICCPR), that was the construction which should be adopted (R (Barclay) v Lord Chancellor [2010] 1 AC 464 paragraphs 86 to 95).  There was a strong presumption “of considerable potency” that the legislature passed legislation intended to conform with the UK’s international obligations, and not to conflict with them (R (Barclay) v Lord Chancellor cit sup;  Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] 2 AC 471, Lord Kerr at paragraph 112;  T, petitioner 1997 SLT 724, Lord Hope at pages 733 to 734). 

 

(iii)       The application of international obligations under the Scotland Act 1998:  “Observing and implementing international obligations” was within the devolved competence of the Scottish Parliament (not being a reserved matter:  the Scotland Act 1998 schedule 5 paragraph 7).  It followed that it was not within the power of the Scottish Parliament to breach international law, such as article 25 of the ICCPR:  to do so would be acting outwith its competence, and any resulting legislation which was in breach of international law was “not law” (section 29 of the 1998 Act).  Sections 35 and 58 of the Scotland Act were simply an enforcement mechanism, and underlined the fact that the Scottish Parliament had not been given power to act incompatibly with international law.  The Lord Ordinary was wrong to reject this  argument as “unstateable” in paragraph [80] of his Opinion.  If the Secretary of State did not intervene and simply remained silent, there was a duty upon the court to identify any breach of international law and to issue a declarator of incompatibility.  Whaley v Lord Advocate 2008 SC (HL) 107 was distinguishable, and Lord Hope’s dicta to the effect that international law was not directly applicable in the UK, were obiter.  The Lord Ordinary’s reasoning (viz that while Whaley was distinguishable to some extent, sections 35 and 58 made it clear that the mechanism contained therein was the only restriction on the Scottish Parliament when it made law) could not survive Axa General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122, where it was held that the Scottish Parliament was not bound simply within the four corners of the Scotland Act 1998, Schedule 5. 

 

(iv)       Citizenship/nationality:  The respondent now accepted that if Scotland became independent, it would not necessarily remain as a member of the European Economic Community (EEC).  As the independence referendum raised a matter of EU law (i.e. citizenship/membership of the EEC:  cf  Rottmann v Freistaat Bayern [2010] QB 761) the issue of proportionality was introduced.  The blanket ban on voting in the referendum was not proportionate:  accordingly there was a breach of international obligations.  Furthermore, on independence those born in Scotland would automatically be given the status of Scottish citizen.  The UK government might then withdraw British citizenship.  Thus the rights and obligations of the petitioners (both Scots born) would be affected.  In such circumstances the rule of law in a modern European democracy required that they be part of the franchise.

 

(v)        The interpretation and development of EC rights:  Article 25 of the ICCPR should be relied upon to achieve a proper construction of A3P1.  While there had been previous unsuccessful attempts to rely upon A3P1 in relation to referenda, many of those decisions were simply letters of rejection sent to applicants, without the law being argued or reasons set out.  If matters were to be fully argued before the Strasbourg court, that court would construe A3P1 as including referenda.  Thus the petitioners’ submission was first, that there was no clear and constant body of jurisprudence against their having the vote in the referendum;  and secondly that there was no doubt which way Strasbourg would decide if faced with the need to construe A3P1 in circumstances such as the present (in other words, Strasbourg would seek to align its jurisprudence with that of the United Nations Human Rights Committee, and would find in favour of the petitioners).   The UK Supreme Court had shown a willingness not to be hampered by “Ullah-like reticence”, but to go further than Strasbourg jurisprudence where there were facts and circumstances which had not been before the Strasbourg court (In re G (Adoption:  Unmarried Couple) [2009] 1 AC 173;  Rabone v Pennine Care NHS Trust [2012] 2 AC 72, Lord Dyson at paragraph 22;  Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] 2 WLR 642, Lord Neuberger at paragraphs 62 and 63;  Lord Kerr at paragraph 86).  Thus sections 35 and 58 of the Scotland Act 1998 were by-passed, and a duty lay on the court to interpret and take into account article 25 of the ICCPR, as submitted by the petitioners. 

 

Conclusion:  Thus there were five ways in which international law, and in particular article 25 of the ICCPR, could and should be relied upon by the domestic courts, and the petitioners should succeed. 

 

Ground of appeal 6:  no power to legislate contrary to the UK’s obligations under international law

[12]      The submissions relevant to this ground of appeal can be found under the heading Ground of Appeal 5(iii) in paragraph [11] above.

 

Ground of appeal 7:  legislation contrary to EU law

[13]      The submissions relevant to this ground of appeal can be found under the heading Ground of Appeal 5(iv) in paragraph [11] above.

 

Submissions for the respondent

[14]      The respondent’s submissions were also presented in both written and oral form.  Again, the summary which follows does not necessarily reflect the order in which submissions were made at the hearing.

 

Grounds of appeal 1 and 2:  duty under section 2(1) of the Human Rights Act 1998 duly fulfilled;  A3P1 not applicable

 

[15]      It was submitted that there was a clear and constant body of Strasbourg jurisprudence determining that A3P1 had no application to referenda:  for example, X v UK (application no 7096/75, the British referendum on EEC membership);  Castelli v Italy (application no 35790/97);  McLean and Cole v UK (2013) 57 EHRR SE8 at paragraph 32.  Also it would not be a natural development of Strasbourg law to extend application of A3P1 to referenda, as in Anchugov and Gladkov v Russia (applications nos 11157/04 and 15162/05, 4 July 2013) the ECtHR had confirmed as recently as July 2013 that A3P1 applies only to elections involving the choice of the legislature.   The Lord Ordinary had not erred in his approach to either section 2 of the 1998 Act or A3P1.

 

Ground of appeal 3:  no interference with the right to freedom of expression under article 10 of the ECHR

 

[16]      Article 10 of the ECHR could not be construed as guaranteeing a right to vote:  X v Netherlands (application no 6573/74);  X v UK (application no 7096/75).  The Lord Ordinary had not erred in paragraphs [34] to [43] of his Opinion.

 

Ground of appeal 4: no common law fundamental right to vote
[17]      There was no “common law fundamental right to vote” (In re McKerr [2004] 1 WLR 807;  Watkins v Secretary of State for the Home Department [2006] 2 AC 395).  In looking to Commonwealth sources, a degree of caution was required (HM Advocate v R 2001 SLT 1366 paragraph [54]), and also there were different approaches in different countries.  The Lord Ordinary had not erred.

 

Ground of appeal 5:  legislation not contrary to rule of law

[18]      The response to the petitioners’ five routes (said to lead to the ability of the domestic courts to rely upon the ICCPR and other international treaties) was as follows.

 

(i)         Developing the common law:  The common law should not be developed in a way which conflicted with (or “went against the grain of”) a statute.   A development of the common law permitting serving prisoners to vote in the referendum would conflict directly with section 3 of the Representation of the People Act 1983, as the Lord Ordinary correctly identified in paragraphs [50] to [57] of his Opinion. 

 

(ii)        Construing domestic legislation:  Section 3 of the 1983 Act was an integral part of the Scotland Act 1998.  It could not be elided or ignored.

 

(iii) The application of international obligations under the Scotland Act 1998:  Lord Hope had dealt with that matter in paragraphs 8 and 9 of Whaley v Lord Advocate 2008 SC (HL) 107.  His dicta were not obiter.  Nor did the petitioners’ argument differ in any material respect from Mr Friend’s argument.  The Lord Ordinary had not erred in paragraphs [80] to [81] of his Opinion. 

 

(iv)       Citizenship/nationality:  There was no direct link between the independence referendum and any decision as to the future membership of the EU.  The Lord Ordinary was correct in his conclusions in paragraphs [83] et seq of his Opinion. 

 

(v)        The interpretation and development of EC rights:  The respondent’s position was as outlined under the headings of grounds of appeal 1 and 2 above.

 

Ground of appeal 6:  power to legislate contrary to international obligations

[19]      Counsel referred to Lord Hope in Whaley.  The Lord Ordinary had not erred.

 

Ground of appeal 7:  legislation contrary to EU Law

[20]      The respondent’s position was as outlined under the heading ground of appeal 5(iv) above.

 

Discussion

[21]      The question whether a convicted prisoner serving his sentence should be eligible to vote has arisen in many jurisdictions.  Different countries have taken different approaches, for example a blanket ban, an entitlement dependent upon the gravity of the offence and length of sentence, or eligibility for all.  The present reclaiming motion concerns a serving prisoner’s eligibility to vote in the referendum on 18 September 2014, not his eligibility to vote in a parliamentary election.  As was emphasised in Haig v Canada (Chief Electoral Officer) [1993] 2 RCS 995 at page 998, a referendum is very different from an election:  in the latter, an elected representative is selected;  in the former, no such selection is made: what occurs is a process of consultation.  We do not therefore accept the petitioners’ submission that the Scottish independence referendum is similar to parliamentary elections.

[22]      The Scottish Parliament, in enacting the Scottish Independence Referendum (Franchise) Act 2013, chose not to extend the referendum franchise to serving prisoners.  The petitioners challenge the legality of the legislation.  Their challenge was dismissed by the Lord Ordinary for the reasons given in his Opinion dated 19 December 2013.  The only question for this court is whether the Lord Ordinary erred in so doing.

 

Grounds of appeal 1 and 2:  whether the Lord Ordinary misdirected himself as to the court’s duty under section 2(1) of the Human Rights Act 1998, and the applicability of A3P1

 

[23]      In our opinion, the Lord Ordinary did not misdirect himself as to the court’s duty to take into account judgments of the ECtHR and other guidance from the commission and committee of ministers.  Having referred in paragraph [12] of his opinion to the authoritative guidance concerning “keeping pace” with Strasbourg law (R (Ullah) v Special Adjudicator [2004] 2 AC 323, Lord Bingham at paragraph 20, and R (Al-Skeini v Secretary of State for Defence [2008] 1 AC 153 at paragraph 106), the Lord Ordinary, in paragraph [13], cited Rabone v Pennine Care NHS Trust [2012] 2 AC 72, and In re G (Adoption:  Unmarried Couple) [2009] 1 AC 173 at paragraphs 27 and 53, and concluded in paragraph [14]:

“ … the courts have gone on to emphasise that in taking into account the Strasbourg case law, it will normally follow clear and constant jurisprudence emerging from the Strasbourg court and will not innovate by a generous interpretation of the Convention in the absence of some clear understanding of that being the direction in which the Strasbourg jurisprudence will inevitably follow …”

 

[24]      We agree.  We also agree with the Lord Ordinary that there is a clear and constant line of Strasbourg law determining that A3P1 does not apply to referenda (for example, X v UK (application no 7096/75, the British referendum on EEC membership);  Castelli v Italy (application no 35790/97);  McLean and Cole v UK (2013) 57 EHRR SE8 at paragraph 32;  and other cases cited by the Lord Ordinary in paragraph [22] of his judgment).  In such circumstances we do not accept that it would be a natural development of Strasbourg law to hold that A3P1 extends to referenda.  We do not accept that such a decision could be regarded as “[flowing] naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further)”:  Rabone v Pennine Care NHS Trust [2012] 2 AC 72, Lord Brown at paragraph 112.  Nor do we accept that it is “not at all unlikely” that the ECtHR would so decide (cf In re G (Adoption:  Unmarried Couple) [2009] 1 AC 173, Lord Hoffmann at paragraph 27, Lord Hope at paragraph 53).  We are confirmed in our view by the approach of the ECtHR in July 2013 in Anchugov and Gladkov v Russia (applications no 11157/04 and no 15162/05, 4 July 2013, paragraphs 17, 38-40, 47, 52-56).  In that case, the Strasbourg court considered article 25 of the ICCPR;  the guidance given by the United Nations Human Rights Committee;  and the case of Yevdokimov v Russian Federation, United Nations Human Rights Committee communication no 1410/2005 (where the United Nations Human Rights Committee applied article 25 of the ICCPR in the context of not only parliamentary elections, but also presidential elections).  The ECtHR confirmed that A3P1 applies only to elections concerning the choice of the legislature.  We are not therefore persuaded that there is any merit in the first or second grounds of appeal.

 

Ground of appeal 3:  whether the legislation is an interference with the right to freedom of expression under article 10 of the ECHR

 

[25]      As has been established by X v Netherlands (application no 6573/74), X v UK (application no 7096/75), and further decisions noted in the Lord Ordinary’s Opinion at paragraph [37], article 10 does not guarantee a right to vote.  We note the petitioners’ criticisms of such cases (namely, that none is a decision of the Grand Chamber, and no real reasoning is disclosed).  Nevertheless, in our view, these cases provide a clear and constant line of decisions from Strasbourg which do not support the petitioners’ submissions.  We accordingly agree with the Lord Ordinary’s conclusion that the statutory provisions cannot be categorised as an interference with the right to freedom of expression under article 10.  We endorse the reasoning at paragraph [40] of his Opinion where he notes that “it would be odd if article 10, the general provision, could be interpreted as giving a right to vote where A3P1, the specific provision, did not”.  We note that in Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 and in Anchugov and Gladkov v Russia cit sup, the ECtHR, having found that a breach of A3P1 had occurred in the context of elections concerning the choice of the legislature, decided that no separate issue arose under article 10 (paragraphs [89] and [116] respectively).  In the result we are not persuaded that the legislation is an interference with the right to freedom of expression under article 10 of the ECHR.

 

Ground of appeal 4:  whether the legislation is contrary to the common law fundamental right to vote

 

[26]      Neither are we persuaded that there is a clearly identifiable common law fundamental right to vote.   The fact that Lord Bingham and Lord Rodger referred to a right to vote as “fundamental” or “constitutional” in Watkins v Secretary of State for the Home Department [2006] 2 AC 395 (Lord Bingham at paragraph 24 et seq and Lord Rodger at paragraph 57 et seq) does not, in our view, mean that the right is necessarily a common law right:  it may be a statutory right.  Milestones in the history of voting eligibility in the UK include The Reform Act 1832, The Representation of the People Act 1918, and The Representation of the People (Equal Franchise) Act 1928;  see too Nairn v University of St Andrews [1909] AC 147 (the refusal to extend the vote to women graduates).  As the Lord Ordinary notes in paragraph [70] of his Opinion (correctly in our view):

“ … The various Acts of Parliament under which the franchise was extended were enacted not against a background of an accepted constitutional right to universal suffrage but rather as a result of political calculation, sometimes principled, sometimes not, sometimes simply a pragmatic response to extra-Parliamentary pressure …”

 

[27]      Thus it seems to us that the right to vote in the UK is statute-based, and we are not persuaded that there is, or ever has been, any significant, identifiable and definable common law fundamental right to vote.  In this context, we note the observations of Lord Rodger at paragraph 61 of Watkins:

“Although embodied in a statute, in a system of universal suffrage today the right to vote would fall within everyone’s notion of a ‘constitutional right’.  And, doubtless, the principle of legality would apply in construing any statutory provision which was said to have abrogated that right.  Indeed, it is in the sphere of interpretation of statutes that the expression ‘constitutional right’ has tended to be used, more or less interchangeably with other expressions.  In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 130D-E, in the general context of the power of the Home Secretary to make rules about prisoners’ contacts with journalists who might investigate the safety of their convictions, Lord Steyn said that there was a ‘fundamental or basic right’ at stake and that, in interpreting the rule-making power in the Prison Act, the principle of legality operated as a ‘constitutional principle’.  In the well known passage in his speech in the same case Lord Hoffmann, at p131E-G, spoke of legislation ‘contrary to fundamental principles of human rights’ and of ‘the basic rights of the individual’.  Fluctuations in terminology are only to be expected, since the operation of the canon of construction does not depend on attaching a particular label, ‘constitutional’ or ‘fundamental’ or ‘basic’, to the legal rule in question.  Rather, the courts interpret the particular provision in this way because the substance of the rule is perceived to be so important that Parliament must squarely confront what it is doing when it interferes with it and must accept the political cost …”

 

[28]      Lord Rodger went on to explain that the Human Rights Act 1998 had virtually superseded the courts’ attempts to rely upon “constitutional rights”.  In paragraph 64, he stated:

“ … Most of the references to ‘constitutional rights’ are to be found in cases dealing with situations before the Human Rights Act 1998 brought Convention rights into our law.  In using the language of ‘constitutional rights’, the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation.  Now that the Human Rights Act 1998 is in place, such heroic efforts are unnecessary:  the Convention rights form part of our law and provide a rough equivalent of a written code of constitutional rights, albeit not one tailor-made for this country.  In general, at least, where the matter is not already covered by the common law but falls within the scope of a Convention right, a claimant can be expected to invoke his remedy under the Human Rights Act rather than to seek to fashion a new common law right:  Wainwright v Home Office [2004] 2 AC 406, 423, paragraph 33, per Lord Hoffmann …”

 

[29]      As we consider that the right to vote in the UK is statute-based, and as Convention rights have been incorporated into domestic law by statute (including a right to vote in terms of A3P1), there is no need, in our view, to attempt to “fashion a new common law right” per Lord Rodger, supra, or to search for and endeavour to rely upon some pre-existing ill-defined common law right:  cf Lord Nicholls in In re McKerr [2004] 1 WLR 807 at paragraphs 30 to 31. 

[30]      Esto such a search for a fundamental common law right to vote is carried out, and reference is made to Commonwealth common law sources, we note that many Commonwealth countries have written constitutions (which the UK does not) and that the right to vote is enshrined in the constitution.  Thus we agree with the Lord Ordinary’s observations, in paragraph [68] of his Opinion, that the Commonwealth decisions –

“ … are all set in the context of the specific constitutional arrangements of the country in question.  In those constitutional arrangements, the vote is enshrined … Each case there involved a consideration of the doctrine of proportionality.  But that is not the issue here … The issue here is a different one, namely whether the right to vote can be said to be a common law constitutional principle in the United Kingdom … whether there is at common law a constitutional right to vote with which the blanket ban interferes …”

 

[31]      Moreover, not all Commonwealth countries have adopted the same approach to a serving prisoner’s right to vote.  While many permit serving prisoners to vote (emphasising that universal suffrage is crucial to a civilised democracy), others do not.  Thus in Sauve v Attorney General (no 2) [2002] 3 SCR 519 (Canada), it was held that any ban on prisoners votes was unconstitutional. In August v The Electoral Commission 1999 (3) SA 1 (CC) (South Africa), it was held that all prisoners were eligible to vote provided that they satisfied certain qualifications such as citizenship.  In Kanyua v Attorney General [2010] eKLR (Kenya), it was held that section 43 of the constitution banned prisoners from voting in national assembly and presidential elections, but not from voting in referenda.  In Roach v Electoral Commissioner [2007] HCA 43 (Australia), the court approved of a graded ban, whereby prisoners serving sentences of 3 years or more were ineligible to vote.

[32]      Ultimately, in paragraphs [69] et seq of his Opinion, the Lord Ordinary accepts “the existence of a fundamental or constitutional right to vote in general terms” but concludes, for the reasons he gives, that the right does not extend to voting in a referendum.  We go further in that we take the view that there is no clearly identifiable common law fundamental right to vote in the UK, and certainly not a clearly identifiable common law fundamental right to vote in a referendum.  Thus in our opinion no such right is contravened by the Scottish Independence Referendum (Franchise) Act 2013.  Accordingly we are not persuaded that the Lord Ordinary erred as submitted in the fourth ground of appeal.

 

Ground of appeal 5:  whether legislation contrary to rule of law
(i)         Developing the common law

[33]      We accept that the courts are able to develop the common law, keeping pace with Strasbourg law (Lord Bingham at paragraph 20 of R (Ullah) v Special Adjudicator [2004] 2 AC 323;  Lord Hope at paragraphs 19 and 20 of Ambrose v Harris 2012 SC (UKSC) 53).  We also accept that, where possible, any development should comply with international law obligations (R v Lyons [2003] 1 AC 976 paragraphs 13 and 27; T petitioner 1997 SLT 724, at page 734C-D).  However we agree with counsel for the respondent that the common law should not be developed in a way which conflicts with (or “goes against the grain” of) statute:  In re McKerr [2004] 1 WLR 807, Lord Nicholls at paragraph 30, Lord Steyn at paragraph 51, Lord Hoffmann at paragraph 71, Lord Rodger at paragraph 73, Lord Brown at paragraph 91;  Kennedy v The Charity Commission [2014] 2 WLR 808, Lord Toulson at paragraphs 133 and 140.  In our view, eligibility to vote is statute-based (cf paragraphs [26] to [27] above):  there is no common law fundamental right to vote to be developed.  In any event, a development in the common law permitting prisoners to vote in the Scottish referendum would undoubtedly conflict with (or go against the grain of) statute, in particular section 3 of the Representation of the People Act 1983.  We consider that the Lord Ordinary correctly identified that conflict in paragraphs [50] to [57] of his Opinion, and has drawn the appropriate conclusion.

 

(ii)        Construing domestic legislation

[34]      We accept that statutes should be construed, so far as possible, in a manner consistent with international obligations (R (Barclay) v Lord Chancellor [2010] 1 AC paragraphs 86-95; Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] 2 AC 471, Lord Nicholls at paragraph 10, Lord Brown at paragraph 98, Lord Kerr at paragraph 112; R v Lyons [2003] 1 AC 976, Lord Bingham and Lord Hoffmann at paragraphs 13 and 27;  and T, petitioner 1997 SLT 724, Lord Hope at page 734C-D).  But the legislation in this case – the Representation of the People Act 1983 and the Scottish Independence Referendum (Franchise) Act 2013 – is quite clear.  The legislation is not ambiguous.  It does not leave the court, in the words of Lord Goff, quoted by Lord Hoffmann in paragraph 27 of R v Lyons, “free … to interpret the law in accordance with” (say) article 25 of the ICCPR.  The legislation cannot be construed in any way other than that serving prisoners will not be eligible to vote in the referendum.

 

(iii)       The application of international obligations under the Scotland Act 1998
[35]      We do not accept either that the lack of an express authorisation in the 1998 Act permitting the Scottish Parliament to legislate contrary to international obligations, or that the power of the Secretary of State to intervene in terms of sections 35 and 58 of the Scotland Act 1998,  define or limit the legislative competence of the Scottish Parliament.  As Lord Hope explained in

Whaley v Lord Advocate 2008 SC (HL) 107:

“[8]      Mr Friend submitted that, as observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law are all excluded by paragraph 7(2)(a) of Schedule 5 of the Scotland Act from the list of reserved matters, the Scottish Parliament was obliged to observe and implement international obligations in just the same way as it was obliged to implement and observe the Convention rights and Community law.  That however is not how observing and implementing international obligations has been provided for by the Scotland Act.  Section 126(10) of the Scotland Act provides that in the Act the expression ‘international obligations’ means any international obligations of the United Kingdom ‘other than’ obligations to observe and implement Community law and the Convention rights.  The distinction that is inherent in the definition recognises that it is for Parliament, not the courts, to decide whether the international treaties should form part of domestic law.  On the one hand there are the Convention rights which have been incorporated into domestic law by the Human Rights Act 1998 and Community law which has been incorporated into domestic law by the European Communities Act 1972 (cap 68).  On the other hand there are international obligations of the kind that have not been incorporated.  The international obligations that Mr Friend relies on all fall into the latter category.  None of them is enforceable in the domestic courts as part of the law of Scotland.  Nor is the Scottish Parliament bound to implement them, although it may choose to do so as they are not among the reserved matters that are outside its legislation competence (Scotland Act, section 29(2)(b)).  As senior counsel for the respondent put it, the Scottish Parliament has the right so to legislate, not a duty to do so.

 

[9]        Recognising that international obligations are not part of domestic law, the Scotland Act provides for them in a different way.  Section 35(1) of the Scotland Act provides that the Secretary of State may make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if it contains provisions which he has reasonable grounds to believe would be incompatible with any international obligations.  Section 58(1) of the Scotland Act provides that the Secretary may also intervene at the stage when a Bill is introduced in the Parliament if he has reasonable grounds to believe that its introduction would be incompatible with any international obligations.  He may so do by directing by order that that action shall not be taken.  What these provisions do is enable the Secretary of State, who is a minister of the UK government, to intervene if he thinks it appropriate to do so in the interests, for example, of international comity.  They do not limit the legislative competence of the Scottish Parliament in a way that can be decided upon by a court …”

 

[36]      In our opinion, the guidance given by Lord Hope in paragraphs [8] and [9] answers the argument which the petitioners seek to make as part of their endeavour to persuade the court that domestic courts can and should rely upon article 25 of the ICCPR.  Standing that authoritative guidance, we consider that there is no merit in that argument.

 

(iv)       Citizenship/nationality: 

[37]      The Lord Ordinary deals with the petitioners’ arguments under this head in paragraphs [83] to [95] of his Opinion.  We agree with, and adopt, his reasoning and conclusion.  In particular, we agree with paragraphs [92] and [95] of his Opinion, which are as follows:

“[92] … I accept the respondent’s argument that, by enacting the Franchise Act, the Scottish Parliament is not exercising competence in the sphere of nationality.  It is not purporting to make a decision about EU membership or EU citizenship.  The process which it is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship.  The point may arise in the future where decisions are taken which might affect those questions.  But that time has not yet come …

 

[95] … even taking the most benevolent view of the material put before the court there is no direct link between the independence referendum and any decision as to future membership or citizenship of the EU.”

 

[38]      It is our opinion that the petitioners cannot obtain any assistance from the case of Rottmann v Freistaat Bayern [2010] QB 761, for the reasons given by the Lord Ordinary in paragraphs [89] to [90] of his Opinion.

 

(v)        The interpretation and development of EC rights

[39]      As noted in paragraph [24] above, we consider that there is a clear and constant line of Strasbourg jurisprudence determining that A3P1 does not apply to referenda.  We do not accept that the Strasbourg court, if hearing the petitioners’ case, would currently decide the matter any differently  (for example, as the petitioners submit, seeking to align its jurisprudence with the guidance given by the United Nations Human Rights Committee, particularly in relation to article 25 of the ICCPR).  Such a decision would not, in our view, flow naturally from existing Strasbourg case law (per Lord Brown at paragraph 112 of Rabone v Pennine Care NHS Trust [2012] 2 AC 72;  cf Lord Dyson at paragraph 22 referring to “indicia which point the way”).  We are fortified in our view by the recent decision of the ECtHR in July 2013 in Anchugov and Gladkov v Russia (applications nos 11157/04 and 15162/05, 4 July 2013, paragraphs 17, 38-40, 47, 52-56), where the ECtHR considered Hirst v United Kingdom (No 2) (2006) 42 EHRR 41;  article 25 of the ICCPR;  the United Nations Human Rights Committee General Comment 1996;  and Yevdokimov v Russian Federation, United Nations Human Rights Committee Communication no 1410/2005;  and nevertheless confirmed their clear and constant line of decisions, namely that A3P1 is confined to “the choice of the legislature”.  We do not therefore accept the petitioners’ fifth route.

 

[40]      It follows from all of the above that we have not been persuaded that the Lord Ordinary erred as contended for in the fifth ground of appeal.

 

Ground of appeal 6:  whether the Scottish Parliament had power to legislate contrary to the UK’s obligations under international law.

 

[41]      For the reasons given by Lord Hope in paragraphs [8] and [9] of Whaley v Lord Advocate, cit sup, quoted in paragraph [35] above, we do not accept that the Lord Ordinary erred in deciding that the Scottish Parliament had the power to legislate contrary to the UK’s obligations under international law.

 

Ground of appeal 7:  whether the Lord Ordinary erred in deciding that the statutory provisions were not contrary to EU law because “there is no direct link between the independence referendum and any decision as to future membership of the EU”

 

[42]      We refer to our views in paragraphs [37] to [38] above.  We are not persuaded that there is any merit in this ground of appeal.

 

Decision

[43]      For the reasons given above, we refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 19 December 2013.  We continue the question of expenses.