A legal bid by three prisoners to gain the right to vote in next year’s independence referendum has been rejected by a judge.
Leslie Moohan and Andrew Gillon, who were both given life sentences, and long-term prisoner Gary Gibson challenged the blanket ban on convicted prisoners voting in the September 2014 poll.
They took their case to the Court of Session in Edinburgh, where their legal teams argued that the ban was unlawful and incompatible with their rights under the European Convention on Human Rights (ECHR).
But in a lengthy judgment, judge Lord Glennie rejected their arguments and ruled their petitions for judicial review should be refused.
The referendum, in which voters will be asked “Should Scotland be an independent country?”, will be held on 18 September next year.
Convicted prisoners serving sentences of imprisonment do not currently have the right to participate in the ballot, but the three inmates, all based at Addiewell prison in West Lothian, challenged the legality of that ban in court.
Moohan is serving a life sentence with a minimum term of 15 years behind bars and is not eligible for release until 2023. Gillon was jailed for life in 1998 and the parole board will not consider the possibility of his release until 22 September next year. Gibson is serving a sentence of more than seven years with effect from July last year.
As a result, none of the prisoners are due to be released until after the date of the referendum and, although they want to vote, will not be eligible to do so.
They each contended that the blanket ban on prisoners voting in the ballot, as set out in the Franchise Act, was unlawful in light of ECHR. They also argued other points, including that the ban went against the “fundamental” right to vote enshrined in common law and said it was contrary to the UK’s international obligations.
But Lord Glennie, who heard the arguments on both sides from the prisoners and the Scottish Government, concluded: “The petitions must be refused.”
The Grand Chamber of the European Court of Human Rights has held on two occasions that a blanket ban on prisoners voting in parliamentary elections is unlawful.
But Lord Glennie said he believed the European court judgment applied only to parliamentary elections, not voting in a referendum.
He said it may be possible that at some date in the future, the Strasbourg court will wish to reconsider its interpretation of ECHR on this matter.
But he added: “It is, in my view, clear that the point has not yet been reached where a domestic court can say with any degree of confidence that the Strasbourg court will take that step.”
Addressing further points raised by the prisoners, Lord Glennie said: “Having considered the arguments advanced by the petitioners, though I accept the existence of a fundamental or constitutional right to vote in general terms, I have come to the conclusion that that right does not extend to voting in a referendum.”
He went on: “In my opinion, any constitutional right to vote is, in principle, limited to the right to vote for the members of parliament.”
It was also argued by the petitioners that, in circumstances where the result of the referendum would or might lead to the loss of European Union rights, the blanket ban on voting is contrary to EU law.
But Lord Glennie ruled: “I have rejected the petitioners’ EU law argument on the basis that 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.”
Green co-convener Patrick Harvie MSP described the ruling as a missed opportunity to aid rehabilitation.
The Glasgow MSP tried earlier this year to amend the Franchise Bill, which determines who gets to vote in the referendum.
He said: “Extending the referendum franchise to prisoners serving very short sentences or those with only a short time left to serve would have been a positive step forward. Today’s ruling is another missed opportunity, following on from the Scottish Government voting against my amendments to the Bill.
“Across society many people see participation in democracy as helpful to reforming those who have been punished for wrongdoing. We may not have succeeded on this occasion but I know those of us who care about addressing the issue of reoffending will continue to make the case for voting as part of that process.”