Moohan v Lord Advocate
The ban on convicted prisoners voting in the Scottish independence referendum was lawful, because article 3 of Protocol No 1 applies only to elections to the legislature, not referendums.
Facts
Two convicted prisoners serving sentences in Scotland challenged the legislation which excluded convicted prisoners from voting in the referendum on Scottish independence held in 2014. They argued that the ban breached article 3 of Protocol No 1, which guarantees free elections, as interpreted in Hirst v United Kingdom (No 2), and the common law right to vote.
Legal principle
The Supreme Court held, by a majority, that the ban was lawful. Lord Hodge said that article 3 of Protocol No 1 applies only to elections to choose the legislature, and that the consistent case law of the European Court of Human Rights showed that it did not apply to referendums. The court also held that there was no common law right to vote which could override the clear words of the legislation, and that the ban did not breach EU law or international law. Lord Kerr and Lord Wilson dissented.
Related cases on discrimination, property, education and elections (article 14 and the Protocols)
- Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363
- Belgian Linguistic Case (No 2) (1979) 1 EHRR 252
- Burden v United Kingdom (2008) 47 EHRR 38
- DH v Czech Republic (2008) 47 EHRR 3
- Hirst v United Kingdom (No 2) (2006) 42 EHRR 41
- JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45
- James v United Kingdom (1986) 8 EHRR 123
- Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
