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 this section.

...

57.-(1) Section 56 above applies to Scotland subject to the following modifications-

(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."

[12] 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

enacted;

...

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-

...

(d) in Scotland, the High Court of Justiciary sitting otherwise than as a

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

proceedings,

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 United Kingdom (No. 2)

[13] 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 on 30 March 2004 held unanimously that there had been a violation of Article 3 of the First Protocol and that no separate issues arose under Articles 14 and 10.

[14] 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 27 April 2005 and on 6 October 2005 the Court delivered its judgment.

[15] 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.

[16] 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.

[17] As regards the United Kingdom, the Court noted that, although the situation was somewhat improved by the Representation of the People Act 2000 (which by amendment permitted unconvicted remand prisoners to vote), section 3 of the 1983 Act remained a blunt instrument. The provision imposed an automatic and indiscriminate blanket restriction on all convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of the First Protocol.

[18] 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.

[19] 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.

 

Discussion

[20] We turn now to consider the issues set out above.

 

(1) Interpretation under section 3 of the Human Rights Act

[21] 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.

[22] 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 [2004] 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.

[23] As Lord Nicholls of Birkenhead put it in Ghaidan at paragraph 32,

" ... 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 [2002] 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."

[24] 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.

[25] 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) [2002] 2 AC 291; R (Anderson) v Home Secretary [2003] 1 AC 837; and Bellinger v Bellinger [2003] 2 AC 467. In In re S. Lord Nicholls of Birkenhead said, at paragraphs 38-39:

"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."

[26] 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.

[27] 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 Birkenhead in In re S, to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this Court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a "possible" solution would require to be selected. Accordingly, in line with the significant qualifications spelled out by the House of Lords in Ghaidan and the other cases mentioned above, the course urged upon us by senior counsel for the appellant is in our opinion inappropriate and should not be followed here.

[28] 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

(i) Whether it is competent for the court to make such a declaration
[29] 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
Registration Appeal Court, has the power to do so, having regard to the provisions of section 4(5) of the Human Rights Act. This sub-section, part of which we have quoted above, provides in full:

"In this section 'court' means -

(a) the House of Lords;

(b) the Judicial Committee of the Privy Council;

(c) the Courts-Martial Appeal Court;

(d) in Scotland, the High Court of Justiciary sitting otherwise than as a

trial court or the Court of Session;

(e) in England and Wales or Northern Ireland, the High Court or the Court

of Appeal."

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 England and Wales to the Court of Appeal, and for an appeal from the sheriff to "the court of three judges constituted under sub-section (2)". Section 56(2) provides that no appeal lies from the decision of the Court of Appeal on appeal from a decision of the county court under that section, so that an appeal to the House of Lords is thereby excluded. In the application of section 56 to Scotland by section 57(1), section 56(2) is to be omitted. The primary question for our consideration is whether, on a proper interpretation, the expression "the Court of Session" in section 4(5)(d) of the Human Rights Act extends to this Court. A subordinate question is whether, by contrast with the position in England and Wales, an appeal lies from this Court to the House of Lords. More generally, is there any discernible reason why, in enacting section 4 of the Human Rights Act, Parliament should have thought it necessary to make a material distinction between the powers of this Court and those of the Court of Appeal?

[30] 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 (Scotland) Act 1868 ("the 1868 Act"). Section 22 thereof provided inter alia for an appeal from the sheriff by special case to "the Court of Appeal hereinafter constituted, for their decision thereon". Section 23 provided for the constitution of this "Court of Appeal", in these terms:

"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.

[31] 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 England, and "any Court in Scotland from which error or an appeal at or immediately before the commencement of this Act lay to the House of Lords by common law or by statute". Since no appeal lay under section 22 of the 1868 Act against a decision of the "Court of Appeal" constituted by section 23 thereof, this exclusion was perpetuated by section 3 of the 1876 Act. It is no doubt for this reason that it was not thought necessary to make further express provision excluding a right of appeal from this Court to the House of Lords in Representation of the People Acts subsequent to the Appellate Jurisdiction Act 1876: see the Representation of the People Act 1948, which amended the 1868 Act, and those of 1949, 1969, 1977, 1978 and 1980, consolidated in the 1983 Act. In particular, section 70(8) of the 1948 Act, which amended section 23 of the 1868 Act, and section 45(8), (9) and (10) of the 1949 Act preserved the expression "court of three judges" (though not the expression "Court of Appeal") derived from section 23. By contrast, it has always been thought necessary to make express provision to exclude a right of appeal from the Court of Appeal in England and Wales to the House of Lords, most recently by section 56(2) of the 1983 Act, since otherwise there is in general such a right of appeal.

[32] 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.

[33] Secondly, neither in the 1868 Act nor in any of the subsequent Representation of the People Acts is this Court called the Registration Appeal Court. We are the "court of three judges" constituted under section 57(2) of the 1983 Act. The name "Registration Appeal Court" is, for convenience, given to this court in the Rules of Court, currently Rules 41.34 to 41.38, derived from Rule 284 of the Rules of the Court of Session 1965. We sit in this court as judges of the Court of Session, robed as such, in a courtroom in Parliament House, and to all outward appearances we would appear to be sitting as an Extra Division of the Court of Session.

[34] Counsel for the respondent submitted that it was not competent for the Registration Appeal Court to make a declaration of incompatibility. Section 57 of the 1983 Act made a clear distinction between the Court of Session and the court of three judges. The definition of "court" in section 4(5) of the Human Rights Act did not include the Registration Appeal Court. Although this was made up of judges of the Court of Session, it was a distinct Court to which an appeal lay on a point of law from the sheriff by virtue of the statute alone. The expression "Court of Session" could not be read as including any court made up of judges from the Court of Session. Had Parliament intended that the Registration Appeal Court be given power to make a declaration of incompatibility, it would have said so expressly. Parliament could not have been unaware of the existence of specialist courts in Scotland. This Court should be slow to give itself powers which Parliament had not expressly conferred upon it. Senior counsel for the appellant, on the other hand, submitted that it would be absurd if this Court could not make a declaration of incompatibility. The Court consisted of experienced judges of the Court of Session, who should be in a position to give effective remedies. The Court of Appeal in England had power to make a declaration of incompatibility, and there was no reason why this Court, sitting in Scotland, should not have the same power. It would be paradoxical if it was not competent to do so. This was particularly so as a single judge sitting in the Outer House of the Court of Session, for example to hear an application for judicial review, did have power to make a declaration of incompatibility. This Court was acting in an appellate supervisory capacity. Under the Scotland Act 1998, Schedule 6, paragraph 10, this was a court of three judges which could refer a devolution issue arising in proceedings before it to the Judicial Committee of the Privy Council. The intention underlying section 4 of the Human Rights Act was that the higher courts should be able to make declarations of incompatibility. If this court could not, that would be a constitutional dead-end.

[35] 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 England and Wales, hence the manner in which section 56 is applied to Scotland by section 57. We have already given our reasons for concluding that no appeal lies from this Court to the House of Lords, so this Court and the Court of Appeal are both courts of final jurisdiction (subject to the possibility of the reference of a devolution issue from this Court to the Privy Council). The definition of "court" in section 4(5) of the Human Rights Act is clearly intended to extend to the higher courts in the three jurisdictions of the United Kingdom. Counsel for the respondent sought to make something of the express inclusion, by paragraph (c), of the Courts-Martial Appeal Court. In our opinion, however, the point is without substance. Under the Courts-Martial (Appeals) Acts 1951 and 1968, the Courts-Martial Appeal Court is a United Kingdom Court and thus sui generis, which is why express provision required to be made in section 4(5) of the Human Rights Act to include it with the House of Lords, the Judicial Committee of the Privy Council, and the higher courts of the separate jurisdictions in the United Kingdom. The express inclusion of the Courts-Martial Appeal Court in the definition of "court" in that sub-section therefore does not point to a deliberate exclusion of this Court.

[36] In Somerville and Others v The Scottish Ministers [2006] 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 [2002] 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.

[37] 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

[38] As noted earlier, the Secretary of State accepts the decision in Hirst. It follows that as regards convicted prisoners no election in the UK to any legislature would be compatible with the Convention. Since the Secretary of State also accepts that the Scottish Parliament is a legislature for the purposes of Article 3 of the First Protocol, the matter is of some urgency because the next election for the Scottish Parliament is due in May 2007.

[39] 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 issued on 6 October 2005. There was no dispute between the parties as to that history.

[40] 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 October 6 2005 judgment of the Grand Chamber of the ECtHR in the case of Hirst v the United Kingdom" was handed up. It was a Government document and was in the following terms:

 


Action

Time

Written Ministerial Statement in Parliament committing to consultation

2 February 2006

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)

June-August 2006

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

November 2006

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

June 2007

 

(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.

[41] Significantly, the Action Plan makes no mention of the Scottish parliamentary election in May 2007.

[42] 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 13 October 2005 in the House of Commons the Minister of State for the Department for Constitutional Affairs said that the Government was giving urgent consideration to the judgment of the European Court of Human Rights and would bring forward proposals in due course.

- On 2 February 2006 in the House of Lords the Secretary of State for Constitutional Affairs and Lord Chancellor said that the judgment had raised a number of difficult and complex issues which needed careful consideration. He had concluded that the best way forward would be to embark on full public consultation in which all the options can be examined. He stated that a consultation document was in preparation and he hoped that it would be available for discussion 'in a few weeks' time'.

- On 23 March 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs, who was also the Minister for Human Rights, said that the Government intended to publish a consultation paper, which it would be doing 'in due course'.

- On 17 May 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the Government had undertaken to issue a full public consultation on the issue of prisoners' voting rights in response to the judgment.

- 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.)

- On 9 October 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that a specific date for publication of the paper had not yet been set. However, the Government were hopeful that it would be published 'shortly after the end of the Summer Recess'.

- On 25 October 2006 in the House of Lords the Parliamentary Under-Secretary of State for the Department for Constitutional Affairs said that the position had not changed since 9 October and that a specific date had not been set for publication of the consultation paper.

[43] 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 (23 November 2006) the paper had still not been published. All that counsel for the respondent could say was that she had been told it would be issued shortly. The draft had been completed in August 2006 but had not yet received ministerial clearance. It had not been forgotten about, however. The imminence of the Scottish parliamentary election had been brought to the notice of those responsible for the document. Their response was that it was a very complex matter and delay in producing the consultation paper had regrettably resulted.

[44] 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 Scotland, appeared before us and gave the following information. Apologising for the fact that counsel for the respondent had not been given certain information for which she had asked, he explained that the Committee of Ministers met only twice a year at ministerial level; the majority of the business was conducted by deputies permanently based in Strasbourg, who met more frequently. In relation to the Committee's responsibility for supervising the execution of judgments of the Court the Advocate-General explained that all cases appear on the agenda for the meeting to take place in the month after a judgment is issued. Thereafter they appear on the agenda again every six months or, if considered appropriate, at a greater or lesser frequency. There are usually about four thousand cases on the agenda for a two-day meeting, of which about sixty are identified for discussion by the Chair of the meeting and the Secretariat. If, over a period of time, a State refuses to implement a decision of the Court, the Secretariat will draft a resolution requiring it to do so and ultimately the State could be asked to withdraw from the Council of Europe.

[45] 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.

[46] 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 Scotland that the relative consultation paper inviting views on amending legislation would be published on or before 19 December 2006, the date when Parliament would rise for the Christmas Recess. He said that both the Secretary of State for Scotland and the Secretary of State for Constitutional Affairs recognised that procedures should have been put in place more quickly to deal with the situation. Why that was not done, he explained, was a result of the internal processes of government following on the judgment in Hirst. That judgment had resulted in a considerable debate within the Government. The Advocate-General was not privy to the internal discussions but both Secretaries of State were acutely aware of the proximity of the Scottish parliamentary election. The August draft consultation paper could not be produced because there had been no agreement on it as yet, and because conventionally an agreed draft must go first to Parliament. He was able to say, however, that it was not proposed to retain a blanket ban on the right of convicted prisoners to vote at parliamentary or local government elections. The proposals would enfranchise at least some of such prisoners. While the time limits for the various necessary stages to enable the legislation to be amended before the Scottish parliamentary election would be very tight, it was technically possible for the procedure under section 10(2) of the Human Rights Act to be carried out in time. The appropriate order could timeously seek to enable convicted prisoners to be enfranchised but he was not in a position to give any undertaking as to what form the order might take.

[47] 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 14 February 2006. Because the time allocated for it turned out to be insufficient it had to be continued. At that time, however, it was very clear to all, including the Secretary of State for Scotland, what the issues were and what the petitioner was seeking.

[48] Following upon the appeal hearing and the Advocate-General's undertaking the promised consultation paper was published on 14 December 2006. It is a substantial document which, inter alia, sets out the options for change which the Government believes merit careful consideration and upon which views are sought. There is then a questionnaire containing a number of questions to which a response is sought. It is envisaged that the consultation will be in two stages. The first stage, which is concerned with which option for change should be adopted, began on 14 December 2006 and will continue for 12 weeks, ending on 7 March 2007. A second period of consultation will follow, to consider how any change might work in practice. Once the consultation process has concluded and the views which have been expressed are considered, the Government will put proposals to Parliament, which will then debate and decide upon the issue.

[49] 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 11 January 2007.

[50] 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 UK legal challenges to section 3(1) of the 1983 Act. He submitted that this was a strong case for making a declaration of incompatibility.

[51] The Advocate-General replied on behalf of the Secretary of State for Scotland. Further to what he had told us on 24 November 2006 he said that the case of Hirst had been on the agenda for the meeting of the Committee of Ministers on 4 and 5 December 2006 but had not been listed for discussion and was not discussed. Discussion of the case was to be resumed at the latest at the meeting of the Committee of Ministers on 5 and 6 June 2007. In the meantime the consultation paper had been sent to the Secretariat of the Committee. The Advocate-General acknowledged that, given the timetable envisaged in the consultation paper, there would not be a system in place which allowed for any convicted prisoners to vote by the time of the Scottish parliamentary election. The Government was completely aware of the imminence of that election. While it would have been technically possible to change the law in time for the election, the Government had decided that in all the circumstances it was not appropriate to bring forward new arrangements in a rush. It was a complex and controversial matter and there was a wide range of possible changes to the present law. There were competing views as to what these changes should be and, indeed, that was the reason why it had taken so long for the Government to reach the present position. In that situation the Advocate-General submitted that the Court should not make a declaration of incompatibility. The Government fully accepted the decision of the European Court of Human Rights in Hirst. A declaration of incompatibility was not necessary to put the Government on notice that the present law was not Convention-compliant; it was well aware of that, as were Scottish Ministers. Nor was a declaration necessary to goad the Government into action; action was already being taken.

[52] 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. Under Strasbourg jurisprudence the voting and other rights of convicted persons have been considered on several occasions. As discussed in the judgment in Hirst, contracting States to the Convention have adopted a number of different ways of addressing the question and prisoners' voting rights have also been considered in other jurisdictions. In the Hirst case itself, before his application to the European Court of Human Rights, the applicant had applied to the High Court for a declaration in terms of section 4 of the Human Rights Act that section 3(1) of the 1983 Act was incompatible with the Convention. That application was heard in the Divisional Court in March 2001, with the judgment delivered in April of that year. The application was rejected, and leave to appeal refused, and then (in July 2001) the applicant presented an application to the European Court of Human Rights against the United Kingdom. The case was allocated to the Fourth Section of the Court and on 30 March 2004 a Chamber of that Section issued its judgment in which, after a full review of the relevant authorities, it held unanimously that there had been a violation of Article 3 of the First Protocol.

[53] 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 Birkenhead said this, at paragraph 55:

"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."

[54] 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 United Kingdom was issued in July 2002, only some six months before the hearing and nine months before the decision in Bellinger in the House of Lords. Furthermore, a month or so before the hearing in the House the Government announced its intention to bring forward primary legislation to deal with the relevant problems. So the Government moved much more quickly in relation to Goodwin than it has done in relation to Hirst. This Court is not, of course, the court of final appeal in this country for all cases but it is the court of final appeal for a case such as this and while this case may not perhaps be of such sensitivity as Bellinger, it is nevertheless of far reaching importance.

[55] We fully recognise the importance and significance of the undertaking which was given by the Advocate-General on 24 November 2006. We cannot refrain from commenting, however, that it is unfortunate that the urgency of the situation was apparently only appreciated so late in the day and only in response to direct questioning from the Court. The undertaking was as to when the consultation document would be published. That was realistically as much as could be expected but it was obvious then that there was some way to go before any amending legislation could be in place. That is confirmed by the timetable envisaged in the consultation paper which has now been published. It is accepted by the Government that there will be no amending legislation before the Scottish parliamentary election in May 2007. We fully understand why the Government does not at this stage wish to rush forward with amending legislation but the fact remains that the Scottish parliamentary election in May 2007 will take place in a manner which is not Convention-compliant.

[56] 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

[57] 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.

 

Decision

[58] 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.