Lord Nimmo Smith
 CSIH 9
OPINION OF THE COURT
delivered by LORD ABERNETHY
under section 57 of the Representation of the People Act 1983
WILLIAM SMITH (Assisted Person)
K.D. SCOTT, Electoral
Registration Officer for the areas of Clackmannanshire,
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
 Each member of the Court has made a significant contribution to this Opinion.
 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
 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.
 The appeal
was heard by the Sheriff at Alloa on 18 November and
"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
 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?"
 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.
 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.
 When counsel
for the Secretary of State for
 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
 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."
 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 this section.
57.-(1) Section 56 above applies
(a) subsection (2) shall be omitted;
(b) an appeal lies on any point of law from any decision of the sheriff
under this section to the court of three judges constituted under subsection (2) below; and
(c) for any reference to the Court of Appeal there shall be substituted a
reference to that court of three judges.
(2) 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 appointed from each division of the Inner House and one from the Lords Ordinary in the Outer House; and the Principal Clerk of Session shall be the clerk of the court."
 The Human Rights Act gives effect to, inter alia, Article 3 of the First Protocol of the Convention. That Article is in the following terms:
"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."
The other relevant provisions of the Human Rights Act are as follows:
"3.-(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever
4.-(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(5) In this section 'court' means-
trial court or the Court of Session;
(6) A declaration under this section ('a declaration of incompatibility')-
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
6.-(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the
authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary
legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(6) 'An act' includes a failure to act ...
7.-(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
(b) rely on the Convention right or rights concerned in any legal
but only if he is (or would be) a victim of the unlawful act.
(6) In subsection (1)(b) 'legal proceedings' includes-
(b) an appeal against the decision of a court or tribunal.
10.-(1) This section applies if-
(a) a provision of legislation has been declared under section 4 to be
incompatible with a Convention right ... ; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that,
having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."
Hirst v The
 The case
originated in 2001 in an application lodged with the European Court of Human
Rights under Article 34 of the Convention.
The applicant alleged that as a convicted prisoner in detention he had
been subject to a blanket ban on voting in elections. He invoked Article 3 of the First Protocol
alone and in conjunction with Article 14, as well as Article 10 of the
Convention. After sundry procedure a
hearing took place before a Chamber of the Fourth Section of the Court, which
 Thereafter the
United Kingdom Government made a request for the case to be referred to the
Grand Chamber under Article 43. This was
accepted. A hearing took place on
 The important aspects of the judgment for present purposes may be summarised as follows. Having regard to the preparatory work to Article 3 of the First Protocol and the interpretation of the provision in the context of the Convention as a whole, the Court had previously established that the Article guaranteed individual rights, including the right to vote and to stand for election (Mathieu-Mohin and Clerfayt v Belgium, judgment of 2 March 1987, Series A no. 113). The right to vote was not a privilege. In the twenty-first century the presumption in a democratic State must be in favour of inclusion. Universal suffrage had become the basic principle. Nonetheless, the rights bestowed by Article 3 of the First Protocol were not absolute. There was room for implied limitations and Contracting States must be given a wide margin of appreciation in this sphere. It was, however, for the Court to determine in the last resort whether the requirements of Article 3 of the First Protocol had been complied with; it had to satisfy itself that any conditions did not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they were imposed in pursuit of a legitimate aim; and that the means employed were not disproportionate (see Mathieu-Mohin and Clerfayt v Belgium). In particular, the exclusion of any groups or categories of the general population must be reconcilable with the underlying purposes of Article 3 of the First Protocol.
 This case highlighted the status of the right to vote of convicted prisoners who are detained. The case-law of the Convention organs had in the past accepted various restrictions on certain convicted prisoners. Disenfranchisement, however, was a severe measure which must not be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The measure must therefore pursue a legitimate aim in a proportionate manner.
 As regards the
 The Court went on to say that it was primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in discharging its obligation under Article 46 of the Convention to abide by the final judgment of the Court in any case to which it was a party. In a case such as the present, where Contracting States had adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, it must be left to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of the First Protocol.
 For these reasons the Court held by a majority that there had been a violation of Article 3 of the First Protocol, but that no separate issue arose under Article 14 or under Article 10. Like the Chamber, it also held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant and did not award any monetary compensation. It made an order for costs and expenses in favour of the applicant.
 We turn now to consider the issues set out above.
(1) Interpretation under section 3 of the Human Rights Act
 The primary contention advanced by senior counsel for the appellant was to the effect that, under section 3 of the Human Rights Act, this Court had a duty to interpret section 3(1) of the 1983 Act in such a way as to render it Convention-compliant if it were possible to do so.
 According to senior counsel, therefore, if there was some "possible" interpretation of section 3(1) which would remove the incompatibility identified by the majority of the European Court of Human Rights in Hirst, this Court should adopt it. The true nature and extent of the court's obligation had been made clear in several recent decisions of the House of Lords, notably Ghaidan v Godin-Mendoza  2 AC 557. In that case their Lordships had confirmed that the obligation to "read down" legislative provisions in a Convention-compliant way was not limited to situations in which some ambiguity or absurdity could be identified. Indeed, the end justified the means to such an extent that a court could freely read in words and phrases which were not there, and conversely overrule and rewrite words and phrases which were. The only constraint was that any interpretation along these lines had to be "possible", and in senior counsel's submission it was no obstacle that several "possible" interpretations might be open. The duty of the court was to select any one of them in order to render the legislation Convention-compliant.
 As Lord
" ... the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation."
At paragraph 44, Lord Steyn said:
"It is necessary to state what section 3(1), and in particular the word 'possible', does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word 'possible' in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR ... Parliament specifically rejected the legislative model of requiring a reasonable interpretation."
In his dissenting opinion, at paragraph 67, Lord Millett similarly stated:
" ... even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point. The court must 'strive to find a possible interpretation compatible with Convention rights' (emphasis added) R v A  1 AC 45, para. 44, per Lord Steyn. But it is not entitled to give it an impossible one, however much it would wish to do so."
And at paragraphs 119 and 121, Lord Rodger of Earlsferry confirmed:
" ... where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words."
" ... it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is 'amending' the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation."
 With these principles in mind senior counsel maintained that it was possible to read down section 3(1) of the 1983 Act so as to make it Convention-compliant. Adopting a suggestion made by Judge Caflisch in Hirst, whose concurring judgment contained the only guidance there was as to what might be a Convention-compliant scheme, insertion of words to the effect that any ban on prisoner voting would apply at the discretion of the sentencing judge would qualify, but not contradict, the "grain of the legislation". The present case should therefore be resolved along these lines.
 In reply,
counsel for the respondent submitted that there was no scope here for the kind
of exercise which had found favour in Ghaidan. Section 3 of the Human Rights Act empowered
the court to interpret legislation, where possible, in a certain way. It did not entitle the court to amend or
reverse clear legislative provisions, nor otherwise to usurp the legislative
function of Parliament. Moreover, the
statutory duty could not sensibly extend to requiring (or even entitling) the
court to make arbitrary choices, without the benefit of consultation or advice,
among a variety of different policy options.
These limitations on the scope of the obligation under section 3 of the
Human Rights Act were expressly acknowledged in the course of their Lordships'
speeches in Ghaidan itself, and also
in other recent decisions of the House of Lords such as In re S. (Minors)(Care Order: Implementation
of Care Plan)  2 AC 291; R (Anderson) v Home Secretary  1 AC 837;
and Bellinger v Bellinger  2 AC 467. In In
re S. Lord Nicholls of
"Section 3 is concerned with interpretation ... The Human Rights Act reserves the amendment of primary legislation to Parliament."
And at paragraph 40 he said:
" ... a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation."
In Bellinger, at paragraph 67, Lord Hope of Craighead said:
" ... the obligation, powerful though it is, is not to be performed without regard to its limitations. The obligation applies to the interpretation of legislation, which is the judges' function. It does not give them power to legislate ... "
In the same case, at paragraph 78, Lord Hobhouse of Woodborough dismissed an argument under section 3 of the Human Rights Act in the following terms:
"This would in my view not be an exercise in interpretation however robust. It would be a legislative exercise of amendment making a legislative choice as to what precise amendment was appropriate."
And in Ghaidan, at paragraph 121, Lord Rodger of Earlsferry confirmed that:
" ... using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute."
 Turning to the circumstances of the present case, section 3(1) of the 1983 Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences. There was thus no "grain of the legislation" which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights. Over and above that, it was necessary to recognise the complexity of the issues which had been opened up by the decision of the European Court of Human Rights in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward. Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives.
 Against that
background, we are clearly of the opinion that the appellant's submission must
be rejected and we decline to "read down" section 3(1) of the 1983 Act in the
manner proposed. As the discussion
before us progressed, our impression was that senior counsel for the appellant
recognised the significant limitations of the approach for which he initially
contended, and came to appreciate that in asking this Court to choose among
multiple policy alternatives he was not truly advocating an exercise of
interpretation at all. Whether that
impression was justified or not, we do not accept that an interpretative exercise
within the proper scope of the decision in Ghaidan
is legitimately open to us in this case.
In our opinion to read down section 3(1) of the 1983 Act as providing
for full or partial enfranchisement of convicted prisoners serving custodial
sentences would be, in the phrase used by Lord Nicholls of
 We would add that the approach to "reading down" discussed in Ghaidan appears to us to give rise to potentially significant difficulties in the consistent interpretation of legislation in the various courts which may have to apply it. As we have said, however, we feel unable to "read down" section 3(1) of the 1983 Act in the manner proposed on behalf of the appellant on any view of the section; so it is not necessary for us to consider this matter further. For that reason, and having regard to the limited range of the submissions which were advanced to us on this point, we prefer to reserve our opinion on the extent to which this aspect of Ghaidan might be followed and applied in Scottish courts.
(2) Declaration of incompatibility
it is competent for the court to make such a declaration
 If we rejected his contentions in relation to the interpretation of section 3(1) of the 1983 Act, senior counsel for the appellant invited us to make a declaration of incompatibility, in terms of section 4(2) of the Human Rights Act, between section 3(1) and Article 3 of the First Protocol of the Convention. The first question for us to consider is whether this Court, the
"In this section 'court' means -
(a) the House of Lords;
(b) the Judicial Committee of the Privy Council;
(c) the Courts-Martial Appeal Court;
trial court or the Court of Session;
As has been seen, sections 56 and 57 of the 1983 Act
(the draftsmanship of which leaves much to be desired) provide respectively for
an appeal from the county court in
 We were
favoured with a brief review of the history of the relevant legislation. The starting point for present purposes is
the Representation of the People (
"The court for hearing appeals under the preceding section of this Act shall consist of three judges of the Court of Session, to be named from time to time by act of sederunt of the said Court, one judge to be named from each Division of the Inner House, and one from the Lords Ordinary in the Outer House; and it shall be competent from time to time by act of sederunt to supply any vacancy which may occur in such court, and to regulate the sittings and forms of process therein so as to carry out the provisions of this Act; and such acts of sederunt may be made, and such court may sit, either during the sitting of the Court of Session, or in vacation or recess; and the junior principal clerk of session shall be the clerk of such court."
Section 22 provided that "the decision of the said court shall be final, and not subject to review by any court, or in any manner whosoever." It can be seen from these provisions that the constitution of the "Court of Appeal" under the 1868 Act was in all relevant respects the same as that provided for this Court by section 57(2) of the 1983 Act, and that no appeal lay from that Court to the House of Lords.
 It is
convenient at this point to notice that by section 3 of the Appellate
Jurisdiction Act 1876 it was provided that an appeal should lie to the House of
Lords from any order or judgment of any of the courts therein specified. These were the Court of Appeal in
 A number of points may be noticed. First, it may be wondered why, in 1868, it was thought necessary to constitute a "Court of Appeal" separate from the Court of Session. While we have not been referred to any material which might provide a definitive answer to this question, it appears to us that there may have been purely practical reasons for constituting such a court. In those days, each Division of the Inner House consisted of four judges. The judges of each Division sat together to deal with such cases as came before them during each session of the Court. A quorum of each Division was three judges. Outer House judges did not sit in the Inner House, and dealt with cases that came before them in the Outer House during the sessions of court. (Exceptions arose when a court of more than four judges was convened.) In providing for the constitution of a "Court of Appeal" consisting of one judge from each Division of the Inner House and one Lord Ordinary, section 23 of the 1868 Act enabled that Court to sit without disrupting the business of either the Inner House or the Outer House; and by providing that it could sit either during the sitting of the Court of Session, or in vacation or recess, enabled the Court to sit whenever the need arose.
neither in the 1868 Act nor in any of the subsequent Representation of the
People Acts is this Court called the
 Counsel for
the respondent submitted that it was not competent for the
 In considering
this issue, we are of the opinion that the status and functions of this Court
are clearly intended to be no different from those of the Court of Appeal in
 In Somerville and Others v The Scottish Ministers  CSIH 52 the Human Rights Act was described as "a constitutional statute": see, for example, paragraph 45. A generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the State are to be entitled: Regina v DPP, ex parte Kebilene  2 A.C. 326 per Lord Hope of Craighead at page 375; Somerville at paragraphs 49 and 54. Provisions of the Convention are directly engaged by the 1983 Act. No sound reason has been suggested to us, and none occurs to us, as to why Parliament might not have wished this Court to have the power to make a declaration of incompatibility. The solution, in our opinion, is to be found in applying a generous and purposive construction to section 4 of the Human Rights Act. Adopting this approach, and having regard to the status and constitution of the other courts listed in sub-section 5, the expression "Court of Session" may properly be construed as extending to any court in Scotland consisting of judges of the Court of Session and sitting in their capacity as such. It is not necessary for this purpose to describe this Court as being part of the Court of Session; the legislation from 1868 onwards, and most recently section 57 of the 1983 Act, constitutes it as a separate court. It is sufficient for us to conclude, as we do, that the expression "Court of Session" in the Human Rights Act is capable of being construed in such a way as to extend to this Court.
 For these reasons we are satisfied that it is competent for this Court to make a declaration of incompatibility in terms of section 4(2) of the Human Rights Act.
(ii) Whether this Court should in the exercise of its discretion make such a declaration
 As noted
earlier, the Secretary of State accepts the decision in Hirst. It follows that as regards
convicted prisoners no election in the
 In considering
whether the Court should exercise its discretion to make a declaration of
incompatibility it is convenient first to set out a history of what has taken
place since the judgment in Hirst was
 At the start
of this part of the debate a copy of a document entitled "Action Plan for
policy on Prisoner voting rights following the
Written Ministerial Statement in Parliament committing to consultation
Research and Drafting of Phase 1 consultation (Principles, Context, and Options)
February and March 2006
Obtain Ministerial clearance of draft Phase 1 paper and publication
April-May 2006 (during purdah period for local elections)
Consultation period (12 weeks minimum)
Analysis of responses and (if appropriate) drafting of Phase 2 consultation (Preferred Option & Detailed implementation issues)
Sept - Nov 2006
Obtain Ministerial clearance for and publish Response paper for Phase 1 paper and (if appropriate) draft Phase 2 consultation paper
Consultation period (12 weeks minimum)
December 2006 - February 2007
Analysis of responses and drafting of Response paper for Phase 2
March - May 2007 (during purdah period for local elections)
Obtain Ministerial clearance for and publish Response paper for Phase 2
(If appropriate) Drafting of appropriate legislation to effect change
July - September 2007
Introduction and passage of legislation
From October 2007? (Timing subject to Parliamentary business)
Counsel for the respondent informed us that the Action Plan was produced in terms of Article 46 of the Convention to enable the Committee of Ministers to supervise the execution of the judgment in Hirst. She accepted that there had been some slippage in the timetable in the Action Plan.
 Significantly, the Action Plan makes no mention of the Scottish parliamentary election in May 2007.
 We were then referred to a number of passages in Hansard, where the following statements on behalf of the Government in answer to parliamentary questions in relation to the judgment in Hirst are recorded:
- On 25 May 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the UK Government had responded to the European Council of Ministers, setting out a plan of action that 'should see the consultation paper published before the end of June 2006'. (This is presumably the Action Plan previously referred to.)
 It is clear
from this history that the timetable in the Action Plan has indeed slipped, and
slipped badly. On some occasions
indications were given as to when the consultation paper would be available for
discussion. But none of these was
met. As at the continued date of the
hearing before us (
 The Court was
concerned to know what action had been taken by the Committee of Ministers and
the Government to date and also what the Government proposed to do, given its
acceptance that as matters stand the Scottish parliamentary election in May
2007 would not comply with the Convention.
The following morning the Advocate-General, representing the Secretary
of State for
 With regard to the case of Hirst the Advocate-General said that, as a new case, it was on the agenda for the Committee of Ministers' meeting in November 2005. It was on the agenda again for the meeting in June 2006 under the heading "Just Satisfaction". That was because the Committee wanted to check that the expenses, which the Court had awarded to the applicant, had been paid. They were in fact paid within the appropriate timescale but there had been some difficulty in obtaining a receipt from the applicant's solicitors. The matter appeared on the agenda again for the meeting in July 2006 by which time the matter had been satisfactorily concluded. The case was on the agenda again for the meeting in December 2006 under the heading "Individual Measures - General Problems". The Secretariat had been advised that:
"The consultation paper has not yet been published because the Government is still carefully considering and discussing internally the various options which could be pursued in order to implement the judgment. The Government hopes to publish the paper shortly."
It was anticipated that the Secretariat would produce a note to the agenda reporting on progress to date, together with a draft decision for the meeting to adopt, probably postponing further discussion until the next meeting in mid-February 2007.
 With regard to
the delay in producing the consultation paper the Advocate-General said that
the draft had been produced in August 2006.
It had been circulated and discussed by Ministers but as yet they had
been unable to come to a collective view.
The Advocate-General then gave an undertaking to the Court on behalf of
the Secretary of State for
 We should also
record that the hearing before us on 23 and 24 November was a continued hearing
of the petitioner's appeal. The appeal
first called before us on
 Following upon
the appeal hearing and the Advocate-General's undertaking the promised
consultation paper was published on
 Following the
publication of the consultation paper the parties intimated that they wished to
make further submissions as to whether the Court should make a declaration of
incompatibility. A hearing for this
purpose took place on
 Senior counsel
for the appellant pointed out that the timetable which was envisaged in the
consultation paper meant that there was no realistic chance of legislation to
amend section 3(1) of the 1983 Act before the Scottish parliamentary election
in May 2007. It was notable that no
reference to that election was made in the consultation paper and there was no
reference to this case in the section in the paper devoted to other
Advocate-General replied on behalf of the Secretary of State for
 We have
considered it appropriate to set out the history of this matter in full. No doubt the issues which faced the
Government following upon the judgment of the European Court of Human Rights in
Hirst were complex and required
careful consideration. We fully
recognise that. But it would be
surprising if the Government had not given some consideration to these issues,
at least as a contingency, long before then.
The question of prisoners' voting rights is not new. The Representation of the People Act 2000 made
provision enabling prisoners on remand to vote.
 Counsel for
the Secretary of State recognised that arguments similar to those which were
being advanced in this case had been rejected by the House of Lords in Bellinger v Bellinger 2003 2 AC 467. In
that case Lord Nicholls of
"If a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In exercising this discretion the court will have regard to all the circumstances. In the present case the government has not sought to question the decision of the European Court of Human Rights in Goodwin 35 EHRR 447. Indeed, it is committed to giving effect to that decision. Nevertheless, when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention. I would therefore make a declaration of incompatibility as sought."
 That was the
unanimous view of their Lordships. In
our opinion much of what Lord Nicholls said applies equally, or with greater
force, to this case. It is perhaps worth
noting that the decision in Goodwin v
 We fully
recognise the importance and significance of the undertaking which was given by
the Advocate-General on
 Having regard to all the circumstances of the case, we have come to the view that the Court should not merely observe that section 3(1) of the 1983 Act is incompatible with the Convention but should make a formal declaration of incompatibility to that effect.
(3) Declarator at common law
 In light of what we have said above there is no need to go further. It is enough to say that we are not persuaded that it would have been competent to grant a declarator at common law or, in any event, that it would have been appropriate to do so.
 We shall answer both questions in the Stated Case in the affirmative and refuse the appeal. We shall, however, make a declaration of incompatibility in the terms indicated.