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UK Prisoners Right to Vote Does Not Extend to Voting in a Referenda

UK Prisoners Right to Vote Does Not Extend to Voting in a Referenda

Moohan and another (Appellants) v The Lord Advocate (Respondent) [2014] UKSC 67 On appeal from [2014] CSIH 56

JUSTICES: Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge

December 17, 2104

Report by Monica Achode

Background to the Appeals Under the Scottish Independence Referendum (Franchise) Act 2013, convicted prisoners were not eligible to vote in the Scottish independence referenda. The Appellants were Scottish prisoners who challenged that exclusion through judicial review proceedings. They relied on previous case law establishing that a general and automatic prohibition that bared prisoners from participating in general elections violated article 3 of Protocol No 1of the European Convention on Human Rights (A3P1).

The appellants’ judicial review applications were refused in the Outer House of the Court of Session while the First Division of the Inner House of the Court of Session refused a reclaiming motion. The Supreme Court heard and decided the appellants’ appeal, in order that the matter be resolved in advance of the then referendum.

European Convention on Human Rights Protocol No 1

“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.”


Whether the prisoners incarcerated in Scotland as at the time of the referendum had a right to vote in it

Constitution – fundamental rights and freedoms – right to participate in civil processes – right to vote in a referendum – statutory disenfranchisement of prisoners – where the appellants had been incarcerated by the state – whether the appellants had a right to vote in the referendum – European Convention on Human Rights Protocol No 1


  1. The Supreme Court was of the view that the words of A3P1 on their ordinary meaning referred to an obligation to hold periodic elections to a democratically elected legislature. However, the requirement that such elections take place “at reasonable intervals” suggested that the drafters did not have referendums in mind [8]
  2. There was unequivocal case law from the European Court of Human Rights (ECHR) to show that the reach of A3P1 was limited to periodic general elections to the legislature. Although the Supreme Court was not bound to follow ECHR authority, it would ordinarily do so when, as here, there was a “clear and constant line of decisions” delineating the scope of a Convention right.
  3. These cases also showed that the political importance of a democratic decision was the not the criterion for its inclusion within A3P1. Article 10 of the ECHR, protecting freedom of expression, did not confer any wider right to vote than was provided by A3P1. The prohibition on prisoners voting did not breach EU law because:(a) the outcome of the referendum would not in itself have been determinative of voters’ EU citizenship; and
    (b) EU law did not incorporate any right to vote. The appellants relied on Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which protected the right to participate in referendums on self-determination, both as an aid to interpreting A3P1 and as a free-standing international law obligation. Neither point succeeded.
  4. Article 25 ICCPR was different in wording and scope from and did not inform the interpretation of A3P1. The ICCPR was not incorporated into UK domestic law and therefore Article 25 did not affect the legislative competence of the Scottish Parliament.
  5. The right to vote was a basic or constitutional right but common law had not developed so as to recognize a right of universal and equal suffrage from which any derogation would be provided for by law and proportionate. Neither was the right to vote inherent in the rule of law on a separate basis from a statutory franchise.

    Concurring opinion of Lady Hale

  6. A3P1 did not require the holding of a referendum, even on such an important issue as Scottish independence and hence did not have a bearing on the right to vote in such a referendum.

Dissenting opinion of Lord Kerr and Lord Wilson

  1. The natural meaning of the words of A3P1 not only encompasses elections to the legislature but also elections that would determine the form of the legislature. The ECHR was a living instrument and A3P1 could apply to situations which were not in the contemplation of its original drafters.
  2. A fundamental purpose of the ECHR was to guarantee an effective political democracy; that purpose would be frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to this most fundamental of votes.
  3. The requirement to hold elections at “regular intervals” was secondary to the primary aim of A3P1 which was to ensure that citizens could have a full participative role in the selection of those who would govern them. The ECHR case law did not, so far, consider a referendum that would determine the type of legislature that a country’s people would have.
  4. The words “ensure the free expression of the opinion of the people in the choice of the legislature” were dominant in A3P1 (and particularly apt to describe the Scottish independence referendum) while the words “at regular intervals” were subservient and were not to be interpreted to contrary effect to the object and purpose of the provision.
  5. The ECHR authorities on referendums were not directly on point and it was open to the Supreme Court to go further than them in developing a Convention rights.

The Supreme Court dismissed the appeal holding that the statutory disenfranchisement of convicted prisoners from voting in the Scottish referendum was lawful.

Relevance To The Kenyan Situation

In the last referendum Kenya held, the Kenyan Interim Independent Constitutional Dispute Resolution Court ruled that prisoners of sound mind would be allowed to vote in it, being a referendum on the country’s proposed constitution. At the time Kenya’s Constitution banned convicts from voting in presidential, parliamentary and civic elections, but convicts from Kenya’s Shimo La Tewa Prison petitioned the court to allow them to vote in the referendum, arguing that it did not fall under any of the banned categories. This marked the first time that prisoners in Kenya were allowed to vote in any election.




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