Moohan v Lord Advocate [2014]

Facts: Prisoners appealed against the Scottish Independence Referendum (Franchise) Act 2013, which denied prisoners the right to vote in the Referendum → argued that it’s incompatible with Art 10 ECHR (Freedom of expression); Art 3 Protocol 1 (right to free election)

Held: Both common law and convention-based arguments were dismissed. The act was valid.

• Majority (Lord Hodge, Lady Hale) Art 3 or Protocol 1 is not applicable to non-binding referendums, and it only applies to “directly effective elections”. Literal reading of the wording → narrow meaning Common law rights. The lack of judicial involvement in the historical development of the constitutional structure in the UK means that existence of statutory scheme can preclude the existence of a common law right. It would not be right to suggest that the suffragette had a common law right to vote - that came from the statute in 1928. Lord Hodge agrees that right to vote has been derived from statute.

• Minority (Lord Kerr, Lord Wilson) : More purposive approach to the interpretation of A3P1 . Lord Wilson considered that the drafters would intend the referendum to fall within A3P1’s ambit. Given the constitutional importance of the vote, it is concerning that the protection is given such narrow interpretation.

Academic commentary 

Paul Fradley, “Prisoners’ votes, referendums, and common law rights: A case note on Moohan v Lord Advocate”, 2015

-       The possible repeal of the HRA added the momentum for the court to bring back what Lord Neuberger described as “old toy” (a speech entitled” The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience”, 2014) - common law constitutional rights as a source of human rights (Fradley, 2015)

-       The case represents a change of direction from a general willingness to utilise common law rights to “a more hesitant approach”.

-       Obiter of Lord Hodge noted that the court can be “informed of the principle of democracy and the RoL and international norms” and declare legislation to be unlawful.

-       In reality, Fradley thinks to allow the court to declare a law to be incompatible with supposed common law rights would amount to a drastic change of constitutional power “from the political to the judicial sphere”.

-       Lack of democratic legitimacy

-       Author thinks majority judgment is wrong to suggest that a common law right could not exist when the area has been covered by Parliamentary legislation.