Petition Of George Mcgeoch For Judicial Review Of The Compatibility With The Petitioners Eu Law Rights

JurisdictionScotland
JudgeLord Reed,Lord Bracadale,Lord Hardie
Judgment Date08 November 2011
Neutral Citation[2011] CSIH 67
Published date08 November 2011
Date08 November 2011
CourtCourt of Session
Docket NumberP369/11

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Reed Lord Hardie Lord Bracadale [2011] CSIH 67

P369/11

OPINION OF THE COURT

delivered by LORD REED

in the cause

GEORGE McGEOCH

Petitioner;

against

THE LORD PRESIDENT OF THE COUNCIL

Respondent:

_______

Petitioner: O'Neill, Q.C., Collins; Balfour + Manson LLP

Respondent: Crawford, Q.C., Office of the Advocate General

8 November 2011

Introduction

[1] In this application for judicial review the petitioner, a convicted prisoner, challenges the compatibility with EU law of the provisions of the Representation of the People Act 1983 ("the 1983 Act") which prevent him from being included in the Register of Local Government Electors.

Background

[2] The petitioner is serving a life sentence. The earliest date on which he can be considered for parole is July 2015. He is currently detained in HMP Dumfries. On 5 November 2010 he applied to the Electoral Registration Officer for Dumfries and Galloway ("the ERO") for his name to be included in the Register of Local Government Electors. Inclusion in that register is necessary in order to be able to vote in local government elections and elections to the Scottish Parliament. That application was refused by letter dated 11 February 2011, on the basis that the 1983 Act prevented his being registered. Section 3(1) of the 1983 Act provides:

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any Parliamentary or local government elections".

Section 4(3) provides that a person is entitled to be registered in the Register of Local Government Electors for any electoral area if on the relevant date he is, inter alia, resident in that area, and not subject to any legal incapacity to vote. Section 5(2) provides that, subject to certain exceptions which are not material to the present case, a person who is detained at any place in legal custody is not, by reason of his presence there, to be treated for the purposes of section 4 as resident there.

[3] The petitioner then brought the present application for judicial review, in which he seeks the following remedies:

(a) declarator that the application to him of the convicted prisoner disenfranchisement provisions of the 1983 Act insofar as he seeks to be able to be included in the Register of Local Government Electors is incompatible with his rights under article 20(2)(b) of the Treaty on the Functioning of the European Union ("TFEU") and article 40 of the Charter of Fundamental Rights of the European Union ("the Charter");

(b) an order requiring the ERO to include him on the Register of Local Government Electors; and

(c) in the event that local government elections, including elections to the Scottish Parliament, should take place on a franchise which excludes him by reason of these disenfranchisement provisions, Francovich damages for the resulting contravention of his rights under EU law.

[4] The petition came before the Lord Ordinary on 31 March 2011, on the petitioner's motion for orders for intimation and service and for an interim order under head (b) above. The motion was opposed on behalf of the ERO and on behalf of the Lord President of the Council (the respondent) as the responsible minister. After hearing submissions that day and on 7 April 2011, not only in relation to the motion but in relation to the petition as a whole, the Lord Ordinary issued his decision on 8 April 2011, in time for the Scottish Parliamentary election to be held on 5 May 2011. We would pay tribute to the evident care, as well as the expedition, with which he prepared his Opinion.

[5] The Lord Ordinary refused the petition. He held, in the first place, that the petitioner had failed to avail himself of a suitable alternative remedy in the form of a statutory appeal under the 1983 Act, and that it was inappropriate in these circumstances for the court to entertain an application for judicial review. Secondly, he held that EU law did not in any event confer upon the nationals of a Member State the right to vote in municipal elections in that state.

[6] The petitioner reclaimed against that decision. At a procedural hearing held on 12 May 2011, counsel for the ERO and the respondent confirmed that they were no longer founding on the petitioner's failure to use an alternative remedy, in particular because it was accepted that the ERO had failed to observe all the procedural requirements of the statutory scheme. It was also agreed that the only live issue was whether the Lord Ordinary had been correct in his conclusion that EU law did not confer upon the petitioner the right to vote in municipal elections in the United Kingdom. In that regard, counsel for the petitioner maintained that the Lord Ordinary - and, on appeal, this court - was obliged to make a reference to the Court of Justice of the European Union under article 267 TFEU in relation to the following to questions of EU law:

(1) Can the EU citizenship right conferred by article 20(2)(b) TFEU "to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State" be relied upon in a case such as the present, which involves a UK national seeking to rely upon this right against the UK, or can it be relied upon only by EU citizens who are residing in a Member State of which they are not nationals?

(2) If the answer to question 1 is that article 20(2)(b) TFEU can be relied upon by the petitioner in the present case, does the right to vote in municipal elections conferred by that provision cover only local government elections in Scotland, or does it also cover elections to the Scottish Parliament?

In the event, the ERO did not take part in the hearing of the reclaiming motion.

[7] It should be noted that although the proposed first question quoted the words in article 20(2)(b) which refer to elections to the European Parliament, the petitioner's application is concerned solely with local government elections and elections to the Scottish Parliament.


A preliminary issue

[8] At the outset of the hearing, counsel for the petitioner drew to the court's attention the fact that a member of the court, Lord Hardie, had been Lord Advocate at the time when the petitioner was indicted in respect of the offence for which he is currently serving a sentence. Counsel referred to the case of Piersack v Belgium (1982) 5 EHRR 169, where the trial judge had previously been the head of the section in the public prosecutor's office which had been responsible for the proceedings against the applicant, and the European Court of Human Rights concluded that there were in consequence reasonable doubts as to the outward appearance of impartiality. Counsel did not suggest that Lord Hardie should recuse himself, describing the issue as being in a sense a formality, but said that he had been instructed to raise the issue. He also invited the other members of the court to disclose whether they had had any previous involvement with the petitioner as prosecutors, trial judges or members of the Criminal Appeal Court. Those members of the court responded that they had no recollection of any such involvement, but could not exclude that possibility.

[9] The test of impartiality, in circumstances such as these, is whether a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased (Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7). The present proceedings are entirely distinct from the criminal proceedings against the petitioner, and concern an entirely different question. In those circumstances, we do not consider that a fair minded and informed observer would conclude that there was a real possibility that a member of this court might be biased by reason of having been Lord Advocate at the time when the petitioner was indicted in the criminal proceedings, or by reason of having had an involvement in those proceedings as a prosecutor, trial judge or appellate judge (even on the assumption that there had been any such involvement in the present case). We therefore see no reason why any member of the court should recuse himself.

The relevant provisions

[10] Before considering the parties' arguments, it may be helpful first to set out the relevant legislative provisions.

[11] Articles 20 to 25 TFEU are in the following terms:

"Article 20

(ex Article 17 TEC)

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

Article 21

(ex Article 18 TEC)

1. Every citizen of the Union shall have the right...

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