Derek Traynor+james Fisher For Judicial Review Of The Compatibility Of Section 3(1) Of The Representation Of The People Act 1993
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2007] CSOH 78 |
| Date | 20 April 2007 |
| Docket Number | P695/07 |
| Court | Court of Session |
| Published date | 26 April 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 78 | |
| P695/07 & P696/07 | OPINION OF LORD MALCOLM in the Petitions of DEREK TRAYNOR and JAMES FISHER Petitioners; for Judicial Review of (i) the compatibility of section 3(1) of the Representation of the People Act 1993 with the petitioners' Convention rights; (ii) the compatibility of the Scottish Parliament (Elections etc) Order 2007 with the petitioners' Convention rights; (iii) act of the Secretary of State for Scotland; and (iv) certain acts and apprehended acts of the Scottish Executive undertaken with a view to facilitating and promoting the election to membership of the Scottish Parliament ________________ |
Petitioners: O'Neill, Q.C., Carmichael; Balfour & Manson (for Taylor & Kelly, Coatbridge)
Secretary of State for Scotland: Advocate General for Scotland, Doherty, Q.C.; C Mullin
Scottish Ministers: Cullen, Q.C., Mure; R Henderson
20 April 2007
[1] The petitioners are both serving lengthy prison sentences and as a result are disenfranchised in respect of parliamentary and local elections in terms of section 3(1) of the Representation of the People Act 1983, as amended (the 1983 Act). So far as relevant section 3(1) provides:
"A convicted person during the time he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local government elections."
Following the decision in Hirst v UK (No.2) (2005) 42 EHRR 41, the Registration Appeal Court in Smith v Scott 2007 S.L.T. 137 declared that section 3(1) of the 1983 Act is incompatible with article 3 of the first protocol to the European Convention on Human Rights (the Convention) which provides:
"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."
In Hirst it was decided that article 3 of the first protocol guarantees individual rights, including the right to vote. Universal suffrage is the basic principle. Prisoners do not automatically forfeit their right to vote, and any restrictions applied to them in pursuit of a state's margin of appreciation must be proportionate and justified by a sufficient link between the sanction and the conduct and circumstances of the individual concerned. However section 3(1) of the 1983 Act imposes a blanket restriction which applies automatically to all prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances, and thus falls outside any acceptable margin of appreciation. In Smith the Registration Appeal Court decided that section 3(1) could not be "read down" in a manner which would remove the incompatibility identified by the Strasbourg court. While the UK Government is taking steps to introduce a Convention compliant alteration to the law, this process will take some time to complete. The Registration Appeal Court observed that in the meantime it is apparent "that the Scottish parliamentary elections in May 2007 will take place in a manner which is not Convention compliant." In these circumstances it was considered appropriate to declare the incompatibility between section 3(1) of the 1983 Act and article 3 of the first protocol to the Convention.
[2] As required by section 2(2) of the Scotland Act 1998 (the Scotland Act), elections to the Scottish Parliament will be held on 3 May of this year. In pursuance of the powers contained in sections 12 and 113 of the Scotland Act the Secretary of State for Scotland (the Secretary of State) has made the Scottish Parliament (Elections etc) Order 2007 (the 2007 Order) to provide for the conduct of those elections and related matters. That Order contains provisions which reflect the legal incapacity to vote set down in section 3 and related provisions of the 1983 Act - see articles 11(3), 22(2) and 27(1). Parliamentary elections and the franchise for such elections are reserved matters outside the devolved competence of the Scottish Executive. However the poll on 3 May will be combined with local government elections which do fall within the jurisdiction of the Scottish Executive. The Scottish Executive has acted along with the Electoral Commission to publish a website entitled "Vote Scotland", which is designed to increase awareness of and voting in the forthcoming elections. It has also participated in the "Vote Scotland" campaign, which has similar aims. As the body responsible for the local government part of the combined poll the Executive has co-operated with others in respect of activities relating to the election and the conduct of the election. Funding is apportioned according to statutory responsibilities. In correspondence with agents for the petitioners earlier this year, the office of the Advocate General for Scotland informed those agents that the Secretary of State has not and will not ask the Scottish Ministers to act as his agent in respect of any of his functions concerning the parliamentary elections on 3 May.
[3] Against this background the petitioners have raised applications for judicial review, essentially challenging the legality of the 2007 Order in that it contains provisions which are incompatible with their Convention rights under article 3 of the first protocol. They also challenge the legality of the involvement of the Scottish Executive in the forthcoming elections. The Registration Appeal Court has said that the elections will take place in a manner incompatible with the Convention, thus the petitioners contend that, given the terms of section 57(2) of the Scotland Act, the Scottish Ministers have no power to do anything in relation to the elections. So far as relevant section 57(2) provides:
"Any member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights ...".
A first hearing took place on 19 and 20 April 2007, at which Mr O'Neill, Q.C. for the petitioners asked for final orders of declarator, reduction and interdict to reflect the above propositions. He also sought to reserve the question of damages. The Advocate General for Scotland for the Secretary of State and Mr Cullen, Q.C. for the Scottish Ministers invited me to refuse the petitions. While they both had pleas to the competency of the petitions, neither asked me to uphold those pleas. At the conclusion of the hearing I refused the petitions. In this opinion I give my reasons for that decision.
The 2007 Order
[4] In advance of the hearing counsel for the petitioners lodged a lengthy note of argument and several lever arch files of authorities. In the result little of this material was directly relevant to what Mr O'Neill described as a "short and essentially uncomplicated" submission relating to the alleged illegality of the 2007 Order and the Secretary of State's actings in laying it before Parliament. Only a few of the authorities were referred to in the course of the discussion. The case for the petitioners in respect of the 2007 Order and the Advocate General's response can be summarised as follows. Mr O'Neill recognised that the effect of section 4(6) of HRA is that, notwithstanding the declaration of incompatibility in Smith, the restriction on prisoners' capacity to vote contained in section 3 of the 1983 Act remains in full force and effect. Further, while in terms of section 6(1) of HRA it would be unlawful for the Secretary of State to act in a manner incompatible with a Convention right, section 6(2)(b) disapplies that provision
"if in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions."
The main submission of the Advocate General for Scotland was that section 6(2)(b) provides a complete defence to the claims. He submitted that in the relevant articles in the Order, the Secretary of State was giving effect to the electoral law of the land as contained in section 3 and related provisions of the 1983 Act. However Mr O'Neill's submission was that the Secretary of State was acting under powers contained in section 12 of the Scotland Act, and that in the absence of any express power in that Act or in any other Act of the Westminster Parliament allowing the Secretary of State to make arrangements for a Convention incompatible election to the Scottish Parliament on 3 May, he had no power to make such arrangements. Mr O'Neill observed that there are no such words of express authorisation in section 12 of the Scotland Act, and thus, applying the common law "principle of legality", it must be held that the Secretary of State was acting beyond his powers. He observed that the Scotland Act and HRA were the result of a project to "bring rights home", thus it would be surprising if the Scotland Act authorised a Minister to act in a manner incompatible with the Convention. This is all the more so in the present case given the central importance of democracy in our society. The Secretary of State was simply using section 12 of the Scotland Act. He was not seeking to enforce or apply section 3 of the 1983 Act. Since it had not been envisaged that section 12 of the Scotland Act would be used in a Convention incompatible manner, it follows that section 6(2)(b) of HRA does not apply. Mr O'Neill concluded by submitting that, in any event, section 6(2)(b) should be interpreted in a manner consistent with the common law principle of legality.
[5] The principle of legality was central to Mr O'Neill's submission. He referred to two cases in which it is discussed. The first and the main authority was R v Secretary of State for the Home Department, ex parte Simms and Another [2000] 2 A.C. 115. The case concerned two prisoners convicted of murder. Despite a...
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