OPINION OF THE COURT DELIVERED BY LADY PATON IN THE RECLAIMING MOTION BY LESLIE MOOHAN (AP) AND ANDREW URQUHART BLACK GILLON (AP) AGAINST THE LORD ADVOCATE [2014] ScotCS CSIH_56 (02 July 2014)

OPINION OF THE COURT DELIVERED BY LADY PATON IN THE RECLAIMING MOTION BY LESLIE MOOHAN (AP) AND ANDREW URQUHART BLACK GILLON (AP) AGAINST THE LORD ADVOCATE [2014] ScotCS CSIH_56 (02 July 2014)

There is a clear and constant line of Strasbourg jurisprudence that Article 3 of Protocol 1 ECHR does not apply to referenda, and Article 10 does not guarantee a right to vote. The right to vote in the UK is statute-based, not a common law right. The Scottish Parliament is not legally bound to implement...

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Citation
[2014] ScotCS CSIH_56
Parties
Petitioner and Reclaimer: Leslie Moohan; Petitioner and Reclaimer: Andrew Urquhart Black Gillon; Respondent: The Lord Advocate
Jurisdiction
Scotland
Judgment Date
02 July 2014
Procedural Posture
Judicial Review / Reclaiming Motion (appeal) From First Instance Dismissal
Outcome
reclaiming motion refused; first instance dismissal adhered to
Legal Topics
Prisoner Voting Rights, Referendum Franchise, Compatibility With ECHR, Compatibility With International Law, EU Law and Citizenship
Constitutional Law Human Rights Law Public Law Prisoner Voting Rights Referendum Franchise Compatibility With ECHR Compatibility With International Law EU Law and Citizenship

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Parties

Leslie Moohan

Petitioner and Reclaimer

Andrew Urquhart Black Gillon

Petitioner and Reclaimer

The Lord Advocate

Respondent

Procedural Posture

Judicial Review / Reclaiming Motion (appeal) From First Instance Dismissal

Legal Issues

  1. 1 Does the exclusion of serving prisoners from voting in the Scottish independence referendum violate the European Convention on Human Rights (ECHR)?
  2. 2 Does the legislation contravene a common law fundamental right to vote?
  3. 3 Is the legislation incompatible with the UK's international obligations, including the ICCPR and EU law?

Ratio Decidendi

There is a clear and constant line of Strasbourg jurisprudence that Article 3 of Protocol 1 ECHR does not apply to referenda, and Article 10 does not guarantee a right to vote. The right to vote in the UK is statute-based, not a common law right. The Scottish Parliament is not legally bound to implement unincorporated international obligations. The legislation is clear and unambiguous in excluding serving prisoners from the referendum franchise. There is no direct link between the referendum and EU citizenship. The Lord Ordinary did not err in dismissing the petitions.

Court Disposition

reclaiming motion refused; first instance dismissal adhered to

Orders

  • Petitions dismissed
  • Question of expenses continued