William Smith (ap) V. K D Scott Electoral Registration Officer

JurisdictionScotland
JudgeLord Abernethy,Lord Nimmo Smith,Lord Emslie
Neutral Citation[2007] CSIH 9
Date24 January 2007
Published date24 January 2007
CourtCourt of Session
Docket NumberXA33/04

REGISTRATION APPEAL COURT, SCOTLAND

Lord Abernethy Lord Nimmo Smith Lord Emslie [2007] CSIH 9

XA33/04

OPINION OF THE COURT

delivered by LORD ABERNETHY

in

APPEAL

by

STATED CASE

under section 57 of the Representation of the People Act 1983

by

WILLIAM SMITH (Assisted Person)

Appellant;

against

K.D. SCOTT, Electoral Registration Officer for the areas of Clackmannanshire, Falkirk and Stirling,

Respondent:

_______

Act: O'Neill, Q.C., Collins; Balfour & Manson (for Taylor and Kelly Coatbridge)

Alt: Advocate General, Drummond; Office of Solicitor to the Advocate General for Scotland (for the Secretary of State for Scotland)

24 January 2007

Introduction

[1] Each member of the Court has made a significant contribution to this Opinion.

[2] This is an appeal by way of stated case in terms of the Representation of the People Act 1983, as amended ("the 1983 Act"). In February 2003 the appellant was a convicted person who was detained in HM Prison, Glenochil, Clackmannanshire in pursuance of a sentence of 5 years imprisonment imposed on 3 September 2001 for being concerned in the supplying of controlled drugs. No appeal was taken against either conviction or sentence and on 3 March 2004 he was released on licence. He has now completed his sentence. In February 2003 the appellant wished to be placed on the Electoral Register to enable him to vote at the election for the Scottish Parliament in May of that year. In order to do that he required, in terms of section 11(1) of the Scotland Act 1998, to be entitled to vote and to be registered in the appropriate Register of Electors. He completed an Application to Register to Vote form and a Postal Vote Application form and sent them to the Electoral Registration Officer for the areas of Clackmannanshire, Falkirk and Stirling. On enquiry from that officer he explained that he was not being held on remand but was a convicted prisoner. On receipt of that information the Electoral Registration Officer, acting in terms of section 3(1) of the 1983 Act, refused to include the appellant's name in the Register of Electors. The Electoral Registration Officer is the respondent in this appeal.

[3] In October 2003 the appellant intimated to the respondent that he was going to appeal against that decision. He stated that he considered that the decision breached his human rights. In particular, he stated that Article 3 of the First Protocol and Article 14 of the European Convention on Human Rights ("the Convention") rendered the blanket ban on convicted prisoners' voting as provided by section 3(1) of the 1983 Act capable of being challenged.

[4] The appeal was heard by the Sheriff at Alloa on 18 November and 10 December 2003. The appeal was refused. Thereafter, following an application by the appellant, the Sheriff stated a case for the Opinion of this Court. That is the form of appeal prescribed by the Representation of the People (Scotland) Regulations 1986. In the stated case the Sheriff made findings-in-fact consistent with the above narrative and made a finding-in-law that the appellant, being a convicted person detained in a penal institution in pursuance of a sentence, was not entitled to vote at any parliamentary election or local government election. The Sheriff's note appended to those findings is in the following terms:

"The facts set forth above were not in dispute nor was the law applicable to them. The failure of the appeal was thus inevitable.

When the appeal called before me on 18 November 2003 the appellant's solicitor sought to advance submissions to the effect that the refusal of the respondent to include the appellant in a Register of Electors was contrary to Article 3 of the First Protocol of the European Convention on Human Rights. I declined to entertain her submissions as they related to a matter which was outwith the competency of the Sheriff Court. The relevant statute is primary legislation of the United Kingdom Parliament. As a Sheriff I am empowered only to interpret that legislation and apply it to the facts as I find them. Section 4(5) of the Human Rights Act, 1998 makes it manifest that it is not competent to seek a declarator of incompatibility in the Sheriff Court pursuant to section 4(2) of that Act."

[5] Initially, the stated case did not pose any questions for answer by the Court but an amendment was allowed which contained two questions as follows:

"1. Was I correct to refuse the appeal?

2. Esto I was correct to refuse the appeal, was I correct to not grant a declarator that the terms of section 3(1) of the Representation of the People Act 1983 ... are incompatible with the appellant's rights under Article 3 of the First Protocol to the European Convention on Human Rights, whether by virtue of section 4 of the Human Rights Act 1998 or at common law?"

[6] Since it was clear that the Court would be asked to consider whether to make a declaration of incompatibility in terms of the Human Rights Act section 4(2), notice of the appeal was given to the Secretary of State for Scotland and to the Lord Advocate as a member of the Scottish Executive in terms of section 5(1) of the Human Rights Act 1998 ("the Human Rights Act"). Thereafter the Secretary of State was joined as a party to the proceedings in terms of section 5(2). In that situation we were informed that the respondent did not feel it necessary to appear in the hearing of the appeal. The Lord Advocate did not seek to be joined as a party to the proceedings.

The issues

[7] According to senior counsel for the appellant the Secretary of State accepted that, standing the decision of the Grand Chamber of the European Court of Human Rights in Hirst v The United Kingdom (No. 2) (Application No. 74025/01) issued on 6 October 2005, section 3(1) of the 1983 Act was incompatible with Article 3 of the First Protocol of the Convention and the appellant's rights under that Article had been violated. The Secretary of State also accepted that for the purposes of Article 3 of the First Protocol the Scottish Parliament was a legislature. There remained the question, however, as to what the impact of that was on national law. There were three matters for this Court to consider:

1. Since section 3(1) of the 1983 Act, giving the words of that provision their ordinary meaning, was incompatible with Article 3 of the First Protocol, the Court should consider whether it was possible, in terms of section 3(1) of the Human Rights Act, to read it down in such a way as to make it compatible. If that was possible, it should be done and the appeal should be allowed.

2. If, however, that was not possible, then the appeal would be refused but the Court should consider whether it could and should make a declaration of incompatibility in respect of section 3(1) of the 1983 Act in terms of the Human Rights Act section 4(2). If that could be done, it should be.

3. If the Court did not take that course, it should consider, in the context of the requirement in terms of section 6 of the Human Rights Act for the Court not to act in a manner incompatible with the appellant's Convention rights, whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement. If it would, then the Court was obliged to give such remedy as was open to it within its powers at common law or under any statute. Such a remedy would include granting a declarator that the appellant's rights under Article 3 of the First Protocol of the Convention had been violated. It was open to the Court in the exercise of its inherent jurisdiction to grant such a declarator.

It was only by granting one or other of these remedies that the appellant would be given just satisfaction for the violation of his rights under Article 3 of the First Protocol.

[8] When counsel for the Secretary of State for Scotland came to reply, she informed us that the Secretary of State did indeed fully accept the decision of the European Court of Human Rights in Hirst v The United Kingdom (No. 2). She also said that the Secretary of State accepted that the Scottish Parliament was a legislature for the purposes of Article 3 of the First Protocol of the Convention.

[9] In relation to the three matters for which senior counsel for the appellant had contended the Secretary of State's position was as follows:

"1. It was not possible in terms of section 3(1) of the Human Rights Act to read down section 3(1) of the 1983 Act so as to make it compatible with Article 3 of the First Protocol of the Convention.

2. It was not competent for this Court to make a declaration of incompatibility in terms of section 4(2) of the Human Rights Act. In any event, the Court should not exercise its discretion to do so.

3. It was not competent for this Court to pronounce declarator at common law that section 3(1) of the 1983 Act was incompatible with the Convention."

The principal statutory provisions

[10] The Scotland Act 1998 section 11(1) provides as follows:

"The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll -

(a) would be entitled to vote as electors at a local government election in

an electoral area falling wholly or partly within the constituency, and

(b) are registered in the register of local government electors at an

address within the constituency."

[11] The 1983 Act provides as follows:

"3.-(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local government election."

...

56.-(1) An appeal lies to the county court-

(a) from any decision under this Act of the registration officer on any

claim for registration or objection to a person's registration made to and considered by him,

...

(2) No appeal lies from the decision of the Court of Appeal on appeal from a decision of the county court under...

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