George Mcgeogh For Judicial Review Of The Compatibility With The Petitioners Eu Law Rights Of The Decision Of The Elecotral Registration Officer
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Judgment Date | 08 April 2011 |
| Neutral Citation | [2011] CSOH 65 |
| Docket Number | P369/11 |
| Court | Court of Session |
| Date | 08 April 2011 |
| Published date | 08 April 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 65 | |
| P369/11 | OPINION OF LORD TYRE in the cause GEORGE McGEOGH Petitioner for Judicial Review of the compatibility with the petitioner's EU law rights of the decision of the Electoral Registration Officer to refuse the petitioner's application to be included on the Register of Local Government Electors ___________ |
Petitioner: A. O'Neill QC; Balfour & Manson, Solicitors
First Respondent (Electoral Registration Officer, Dumfries & Galloway): Lindsay; Anderson Strathern
Second Respondent (Advocate General for Scotland, on behalf of the Lord President of the Council): Webster; Office of the Solicitor to the Advocate General
8 April 2011
Introduction
[1] The petitioner is a convicted prisoner in HM Prison, Dumfries. He is serving a life sentence having a tariff of 13 years which commenced on 7 October 1998, with a further consecutive sentence to serve in connection with another offence. The earliest date at which he might be considered for parole is July 2015. In this petition he avers that by application dated 5 November 2010, he applied to the first respondent for his name to be included on the Register of Local Government Electors. On 17 December 2010, the first respondent replied, stating:
"Since you have not told me to the contrary, I am assuming that you are a convicted person. I am of the opinion therefore that any application by you cannot be allowed. This is based on the decision of the Legislation [sic] appeal court in the case of William Smith v K D Scott (Electoral Registration Officer) which confirmed that the Electoral Registration Officer and the Sheriff (in a subsequent appeal) were correct to refuse Mr Smith's registration application on the basis that he was a convicted person detained in a penal Institute.
As I mentioned to you in my earlier letter the British Government is currently considering extending the franchise to all prisoners.
I confirm that I will communicate with you when I have more information about this change in legislation."
[2] The petitioner replied confirming that he was a convicted prisoner serving a sentence and stating that he still wished a final determination of his application. The first respondent replied by letter dated 11 February 2011, stating inter alia as follows:
"As I mentioned to you earlier the British Government is currently considering extending the franchise to all prisoners.
To ensure I have the up-to-date position I have consulted with our Legal Services Department and they have responded as follows:-
1. Although the European Court of Human Rights has found against the United Kingdom in the cases HIRST 1 & 2, the government has not yet made any changes to the law. Accordingly the Representation of the People Act 1983 still applies until such a change is made by the Westminster Government.
2. The Dumfries and Galloway Council cannot act in a manner that would be ultra vires and accordingly are unable to facilitate your request to be added to the electoral register."
[3] In this petition, the petitioner seeks the following remedies:
(a) declarator that the application to him of the convicted prisoner disenfranchisement provisions of the Representation of the People Act 1983 is incompatible with his rights under European Union law; and
(b) an order requiring the first respondent to include him on the Register of Local Government Electors at the address within the constituency where he currently resides under detention; and for such an order to be made ad interim.
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, the petitioner seeks damages ("Francovich damages") for the contravention of his EU law rights from the first and second respondents jointly and severally.
[4] The matter came before me on the petitioner's motion for first orders and for an interim order in terms of paragraph 3, head (b) above. The issue of damages was not argued pending my decision on the petitioner's entitlement to the interim order sought. It was submitted that there was a degree of urgency in determining the application in order that the petitioner's entitlement to vote in the Scottish Parliamentary election to be held on 5 May 2011 may be determined. I heard submissions on behalf of the petitioner on 31 March 2011. The case was then adjourned until 7 April 2011, when I heard submissions on behalf of the respondents and a reply on behalf of the petitioner.
Statutory disenfranchisement provisions
[5] Under section 2 of the Representation of the People Act 1983, a person is entitled to vote as an elector at a local government election in any electoral area if on the date of the poll he -
(a) is registered in the register of local government electors for that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is aged 18 years or over.
However, in terms of section 3, a convicted prisoner during the time when he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.
[6] So far as entitlement to be registered as a local government elector is concerned, section 4(3) of the 1983 Act entitles a person to be registered in the register of local government electors for an electoral area if he -
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is of voting age.
This provision is expressly subject (section 4(4)(a)(i)) to any enactment imposing a disqualification for registration as a local government elector.
[7] Section 5 contains provisions for determining whether a person is resident at a particular address for the purposes of entitlement to be registered as a voter. It is sufficient to quote subsection (6) which provides that
"Subject to sections 7 and 7A below, a person who is detained at any place in legal custody shall not, by reason of his presence there, be treated for the purposes of section 4 as resident there."
By way of exception from section 5(6), section 7A provides that persons remanded in custody otherwise than after conviction of an offence, or a finding in criminal proceedings that he did the act or made the omission charged, shall be regarded for the purposes of section 4 as resident at the place where he is detained if the length of the period which he is likely to spend there is sufficient for him to be regarded as resident for the purposes of electoral registration.
[8] The effect of the above statutory provisions, so far as the petitioner is concerned, is that he is not entitled to be registered as a local government voter in the electoral area in which the prison in which he is serving his custodial sentence is located; nor is he treated for the purposes of entitlement to be registered as resident in that prison.
[9] I have quoted the statutory provisions applicable to local government elections. The reason for this is that it was submitted on behalf of the petitioner that local government elections (which expression was said to include, for present purposes, elections to the Scottish Parliament) fall within the ambit of EU law. Entitlement to vote in local government elections was extended to "citizens of the Union" (other than qualifying Commonwealth citizens and citizens of the Republic of Ireland, who were already so entitled) by regulation 4 of the Local Government Elections (Changes to the Franchise and Qualification of Members) Regulations 1995 (SI 1995 No 1948). These Regulations were made under powers conferred on the Secretary of State by the European Communities Act 1972. They implemented the obligation incumbent on the UK by virtue of what was then Article 8b.1 of the Treaty of Union of 7 February 1992 (the Maastricht Treaty) to grant to every citizen of the Union residing in a member state of which he is not a national the right to vote and stand as a candidate at "municipal elections" under the same conditions as nationals of that state. There is no equivalent right in relation to national Parliamentary elections in a member state, and counsel for the petitioner emphasised that the arguments which he presented were applicable only to local government elections. He submitted, however, that this meant that they were applicable to Scottish Parliamentary elections because, in terms of section 11(1) of the Scotland Act 1998, the persons entitled to vote in any constituency in a Scottish Parliamentary election are those who would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within that constituency, and who are registered as local government electors at an address within it. The correctness of this submission was not accepted by the second respondent and I return to it below.
[10] A right of appeal lies to the sheriff from any decision of an electoral registration officer on an application for registration (1983 Act, section 56(1), read for Scotland with section 204(3)). Procedurally, such an appeal takes the form of a summary application governed by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999 no 929). In terms of section 57(1) of the 1983 Act, a further appeal lies on any point of law from the decision of the sheriff to "the court of three judges constituted under subsection (2) below". Subsection (2) provides:
"The court for hearing appeals under paragraph (b) of subsection (1) above shall consist of three judges of the Court of Session who shall be appointed by the Court of Session by Act of Sederunt and of whom one judge shall be...
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