OUTER HOUSE, COURT OF SESSION

[2011] CSOH 65

 

P369/11

OPINION OF LORD TYRE

 

in the cause

 

GEORGE McGEOGH

Petitioner

 

for

 

Judicial Review of the compatibility with the petitioner's EU law rights of the decision of the Electoral Registration Officer to refuse the petitioner's application to be included on the Register of Local Government Electors

___________

 

Petitioner: A. O'Neill QC; Balfour & Manson, Solicitors

First Respondent (Electoral Registration Officer, Dumfries & Galloway): Lindsay; Anderson Strathern

Second Respondent (Advocate General for Scotland, on behalf of the Lord President of the Council): Webster; Office of the Solicitor to the Advocate General

 

8 April 2011

Introduction

[1] The petitioner is a convicted prisoner in HM Prison, Dumfries. He is serving a life sentence having a tariff of 13 years which commenced on 7 October 1998, with a further consecutive sentence to serve in connection with another offence. The earliest date at which he might be considered for parole is July 2015. In this petition he avers that by application dated 5 November 2010, he applied to the first respondent for his name to be included on the Register of Local Government Electors. On 17 December 2010, the first respondent replied, stating:

"Since you have not told me to the contrary, I am assuming that you are a convicted person. I am of the opinion therefore that any application by you cannot be allowed. This is based on the decision of the Legislation [sic] appeal court in the case of William Smith v K D Scott (Electoral Registration Officer) which confirmed that the Electoral Registration Officer and the Sheriff (in a subsequent appeal) were correct to refuse Mr Smith's registration application on the basis that he was a convicted person detained in a penal Institute.

As I mentioned to you in my earlier letter the British Government is currently considering extending the franchise to all prisoners.

I confirm that I will communicate with you when I have more information about this change in legislation."

[2] The petitioner replied confirming that he was a convicted prisoner serving a sentence and stating that he still wished a final determination of his application. The first respondent replied by letter dated 11 February 2011, stating inter alia as follows:

"As I mentioned to you earlier the British Government is currently considering extending the franchise to all prisoners.

To ensure I have the up-to-date position I have consulted with our Legal Services Department and they have responded as follows:-

1.      Although the European Court of Human Rights has found against the United Kingdom in the cases HIRST 1 & 2, the government has not yet made any changes to the law. Accordingly the Representation of the People Act 1983 still applies until such a change is made by the Westminster Government.

2.      The Dumfries and Galloway Council cannot act in a manner that would be ultra vires and accordingly are unable to facilitate your request to be added to the electoral register."

[3] In this petition, the petitioner seeks the following remedies:

(a) declarator that the application to him of the convicted prisoner disenfranchisement provisions of the Representation of the People Act 1983 is incompatible with his rights under European Union law; and

(b) an order requiring the first respondent to include him on the Register of Local Government Electors at the address within the constituency where he currently resides under detention; and for such an order to be made ad interim.

In the event that local government elections, including elections to the Scottish Parliament, should take place on a franchise which excludes him by reason of these disenfranchisement provisions, the petitioner seeks damages ("Francovich damages") for the contravention of his EU law rights from the first and second respondents jointly and severally.

[4] The matter came before me on the petitioner's motion for first orders and for an interim order in terms of paragraph 3, head (b) above. The issue of damages was not argued pending my decision on the petitioner's entitlement to the interim order sought. It was submitted that there was a degree of urgency in determining the application in order that the petitioner's entitlement to vote in the Scottish Parliamentary election to be held on 5 May 2011 may be determined. I heard submissions on behalf of the petitioner on 31 March 2011. The case was then adjourned until 7 April 2011, when I heard submissions on behalf of the respondents and a reply on behalf of the petitioner.

 

Statutory disenfranchisement provisions

[5] Under section 2 of the Representation of the People Act 1983, a person is entitled to vote as an elector at a local government election in any electoral area if on the date of the poll he -

(a) is registered in the register of local government electors for that area;

(b) is not subject to any legal incapacity to vote (age apart);

(c) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and

(d) is aged 18 years or over.

However, in terms of section 3, a convicted prisoner during the time when he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.

[6] So far as entitlement to be registered as a local government elector is concerned, section 4(3) of the 1983 Act entitles a person to be registered in the register of local government electors for an electoral area if he -

(a) is resident in that area;

(b) is not subject to any legal incapacity to vote (age apart);

(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and

(d) is of voting age.

This provision is expressly subject (section 4(4)(a)(i)) to any enactment imposing a disqualification for registration as a local government elector.

[7] Section 5 contains provisions for determining whether a person is resident at a particular address for the purposes of entitlement to be registered as a voter. It is sufficient to quote subsection (6) which provides that

"Subject to sections 7 and 7A below, a person who is detained at any place in legal custody shall not, by reason of his presence there, be treated for the purposes of section 4 as resident there."

By way of exception from section 5(6), section 7A provides that persons remanded in custody otherwise than after conviction of an offence, or a finding in criminal proceedings that he did the act or made the omission charged, shall be regarded for the purposes of section 4 as resident at the place where he is detained if the length of the period which he is likely to spend there is sufficient for him to be regarded as resident for the purposes of electoral registration.

[8] The effect of the above statutory provisions, so far as the petitioner is concerned, is that he is not entitled to be registered as a local government voter in the electoral area in which the prison in which he is serving his custodial sentence is located; nor is he treated for the purposes of entitlement to be registered as resident in that prison.

[9] I have quoted the statutory provisions applicable to local government elections. The reason for this is that it was submitted on behalf of the petitioner that local government elections (which expression was said to include, for present purposes, elections to the Scottish Parliament) fall within the ambit of EU law. Entitlement to vote in local government elections was extended to "citizens of the Union" (other than qualifying Commonwealth citizens and citizens of the Republic of Ireland, who were already so entitled) by regulation 4 of the Local Government Elections (Changes to the Franchise and Qualification of Members) Regulations 1995 (SI 1995 No 1948). These Regulations were made under powers conferred on the Secretary of State by the European Communities Act 1972. They implemented the obligation incumbent on the UK by virtue of what was then Article 8b.1 of the Treaty of Union of 7 February 1992 (the Maastricht Treaty) to grant to every citizen of the Union residing in a member state of which he is not a national the right to vote and stand as a candidate at "municipal elections" under the same conditions as nationals of that state. There is no equivalent right in relation to national Parliamentary elections in a member state, and counsel for the petitioner emphasised that the arguments which he presented were applicable only to local government elections. He submitted, however, that this meant that they were applicable to Scottish Parliamentary elections because, in terms of section 11(1) of the Scotland Act 1998, the persons entitled to vote in any constituency in a Scottish Parliamentary election are those who would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within that constituency, and who are registered as local government electors at an address within it. The correctness of this submission was not accepted by the second respondent and I return to it below.

[10] A right of appeal lies to the sheriff from any decision of an electoral registration officer on an application for registration (1983 Act, section 56(1), read for Scotland with section 204(3)). Procedurally, such an appeal takes the form of a summary application governed by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999 no 929). In terms of section 57(1) of the 1983 Act, a further appeal lies on any point of law from the decision of the sheriff to "the court of three judges constituted under subsection (2) below". Subsection (2) provides:

"The court for hearing appeals under paragraph (b) of subsection (1) above shall consist of three judges of the Court of Session who shall be appointed by the Court of Session by Act of Sederunt and of whom one judge shall be 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."

This court is referred to in the Rules of Court - though not in the Act itself - as the Registration Appeal Court. Its history and status were considered in detail in Smith v Scott 2007 SC 345, referred to below. The appeal procedure is by stated case in accordance with Rules of Court 41.34 - 41.38. Rule 41.37(1) requires the stated case to be put out for hearing before the court "on the earliest available day".

[11] One may also note that in terms of section 56(3), an appeal to the sheriff or to the court constituted under section 57(2)

"...shall not prejudice the operation as respects the election of the decision appealed against, and anything done in pursuance of the decision shall be as good as if no such appeal had been brought and shall not be affected by the decision of the appeal."

 

Incompatibility of convicted prisoner disenfranchisement with the European Convention on Human Rights

[12] In Hirst v United Kingdom (No 2) (2006) 42 EHRR 849, the European Court of Human Rights held that the blanket disenfranchisement of all convicted prisoners fell outside the UK's margin of appreciation and was incompatible with the Convention right to vote in free elections which is contained in Article 3 of the 1st Protocol to the European Convention on Human Rights. The matter came before the Scottish courts in Smith v Scott (above), in which a convicted prisoner appealed against the refusal by an Electoral Registration Officer to register him as a person entitled to vote in the Scottish Parliamentary election held in 2003. The sheriff refused the appeal and the appellant appealed to the court of three judges constituted under section 57(2) of the 1983 Act. The court declined to "read down" section 3(1) of the 1983 Act so as to render it Convention-compliant and an issue arose as to whether it was competent for a court constituted under section 57(2) to make a declaration of incompatibility in terms of section 4(2) of the Human Rights Act 1998. The court held, rejecting a contrary submission on behalf of the Advocate General, that it was competent for it to do so as the expression "Court of Session" in the Human Rights Act was capable of being construed in such a way as to extend to this court. The court narrated in detail the history of what had taken place since the judgment in Hirst had been issued in October 2005, and concluded that a formal declaration of incompatibility should be made. Since the making of this declaration, there has been a further decision by the European Court of Human Rights in Greens and MT v United Kingdom (23 November 2010) that the blanket restriction in section 3 of the 1983 Act, subsequently extended to cover elections to the European Parliament, constitutes a violation of Convention rights.

[13] During the time since the court in Smith v Scott made its declaration of incompatibility, no amending legislation has been passed to remedy the incompatibility of the 1983 Act with Article 3 of the 1st Protocol to the Convention. I was provided with a Communication dated 1 March 2011 from the UK Government to the Committee of Ministers intimating that the UK Government has requested, pursuant to Article 43 of the Convention, that the judgment in Greens and MT v United Kingdom, referred to above, be referred to the Grand Chamber of the Court in order that it may reconsider its judgment in Hirst. The Note also announced that the Government intends to bring forward legislation for Parliament to debate providing for the blanket ban in the existing law to be replaced by a disenfranchisement of prisoners sentenced to imprisonment for four years or more, with a discretion to a sentencing judge to apply the ban to prisoners sentenced to imprisonment for less than four years, if considered appropriate. Nothing in these announcements will, however, render the Scottish Parliamentary election due to take place on 5 May 2011 Convention-compliant so far as convicted prisoners are concerned.

 

Argument for the petitioner

[14] The difference between the present case on the one hand and Hirst and Smith v Scott on the other is that in the present case the petitioner's arguments are founded upon rights which are said to be conferred by the Treaties of the European Union rather than by the European Convention on Human Rights. The foundation of the petitioner's case is his status as a citizen of the European Union. Citizenship of the EU was first established by the Maastricht Treaty in 1992 and is held by every person holding the nationality of a member state. Article 8 conferred certain specific rights on every citizen of the Union, including (Article 8b.1, mentioned earlier) the right of a person residing in a member state of which he was not a national to vote in municipal elections in that member state, under the same conditions as nationals of that state. It is apparent that (at this stage at least) the right to vote was being conferred only on citizens resident in a member state of which they were not a national. In the Amsterdam Treaty of 1997, Article 8 of the Maastricht Treaty became Articles 17 to 20, and EU citizenship was said to "complement" national citizenship; otherwise no material change was made.

[15] For the petitioner it was submitted that the significant development for present purposes occurred when the Lisbon Treaty entered into force in December 2009. The concepts of citizenship and non-discrimination were brought together as Part 2 (Articles 18 to 25) of the Treaty on the Functioning of the European Union (TFEU). So far as concerns voting rights of a citizen resident in a member state of which he is not a national, Article 22 TFEU replaced Article 19 of the Amsterdam Treaty, which had in turn replaced Article 8b of the Maastricht Treaty, with no material amendment. There are, however, further provisions contained in Article 20(2) TFEU which had no counterpart in previous Treaties. Article 20(2) reads as follows:

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

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

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

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

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

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

[16] The significance of Article 20(2), it was submitted, is that its application is not restricted to EU citizens resident in a member state of which they are not a national. Article 20(2)(b) ought not to be regarded as surplusage but as creating rights different from those enjoyed by citizens under the specific provisions of Article 22. In particular, Article 20(2)(b) is capable of conferring voting rights on EU citizens who are nationals of the state in which they reside. To some extent, this new provision reflected a development of the law which had already occurred in the jurisprudence of the European Court of Justice. In Eman and Sevinger v Municipal Executive of The Hague, Netherlands [2006] ECR I-8060, the Court had ruled that provisions of national law concerning voting rights protected under the Amsterdam Treaty were challengeable even by individuals who held the nationality of the member state concerned. In that case it was held to be a breach of the principle of equal treatment for Dutch nationals resident in the Netherlands Antilles or Aruba to be treated differently from other Dutch nationals with regard to the right to vote in European Parliamentary elections. (Article 19 of the Amsterdam Treaty was, however, held inapplicable to a citizen of the Union wishing to vote in the member state of which he was a national.) Academic commentators have interpreted the Court's decision as a restriction on the freedom of member states to withhold fundamental rights from their own nationals.

[17] In his reply to the second respondent's submission on this point, set out below, counsel for the petitioners submitted that Article 20 is more than a political statement or an introduction to substantive rights contained in Articles 21 to 24. It is Article 20 which contains the statement of the EU rights; the articles which follow provide the "legal base" for the creation of subordinate legislation but do not define the substance of the rights. This is confirmed by reference to the Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02) which accompany the Charter and which are described in their preamble as "a valuable tool of interpretation intended to clarify the provisions of the Charter". The explanation on Article 40 - which contains the right to vote at municipal elections - describes this article as corresponding to "the right guaranteed by Article 20(2)". The words after the comma in Article 20(2)(b) merely apply the principle of equivalence of treatment and do not restrict the scope of Article 20(2)(b) to citizens residing in member states of which they are not nationals. The absence of the words "residing in a member state of which he is not a national" from Article 20(2)(b) is crucial.

[18] Two recent decisions of the European Court have confirmed that rights conferred on EU citizens can be founded upon by a national of a member state in proceedings against the authorities of his or her own member state. In Rottmann v Freistaat Bavaria, Case C-135/08 (2 March 2010), an individual of Austrian origin who had obtained German citizenship by deception argued that it was contrary to his rights as an EU citizen for Germany to withdraw his German nationality, as this would render him stateless and thus deprive him of his status as a citizen of the Union. The Court accepted that because of the implications for the individual's EU citizenship it was appropriate for it to rule on a question affecting nationality, although in the end the Court ruled that it was not contrary to EU law for nationality obtained by deception to be withdrawn, provided that the decision to withdraw observed the principle of proportionality. In Zambrano v Office National de l'Emploi, Case C-34/09 (8 March 2011), a Colombian national who had sought asylum in Belgium claimed a right of residence in Belgium on the ground that if he had to leave, his two young children who had been born in Belgium and who were citizens of the Union would have to leave the territory of the Union with him and would thus be deprived of the genuine enjoyment of their citizenship rights. A number of national governments, as well as the Commission, submitted observations to the Court to the effect that a situation where individuals such as Mr Zambrano's children had never left their member state of residence did not fall within rights of freedom of movement and residence guaranteed under EU law. This argument was rejected by the Court, which referred (as it had done in several previous judgments) to citizenship of the Union as intended to be "the fundamental status of nationals of the member states" and ruled that Article 20 TFEU precluded national measures which had the effect of depriving EU citizens of the effective enjoyment of rights conferred upon them by virtue of their citizenship of the Union. It was significant that the right was found to be guaranteed by Article 20 rather than by Article 21.

[19] Reference was also made to Article 40 of the EU Charter of Fundamental Rights which states that:

"Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State."

Provisions in the Charter which correspond to rights guaranteed by the European Convention on Human Rights have the same meaning and scope as those laid down by the Convention (JMcB v LE, Case C-400/10, 5 October 2010, at paragraph 53), although Charter rights may exceed the level of protection afforded by the Convention. Counsel acknowledged that in terms of Protocol No 30 on the application of the Charter to Poland and to the United Kingdom, the Charter does not extend the ability of any court in the UK to find that the laws, regulations or administrative provisions, practices or action of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. It was maintained, however, that this is an interpretative provision which does not detract from the obligation of the United Kingdom to respect the rights set out in the Charter.

[20] Drawing all of the above authorities together, counsel submitted that the petitioner was entitled, as a citizen of the Union, to vote in the forthcoming Scottish Parliamentary election. The right to vote in this election falls within the ambit of EU law. The petitioner is a citizen of the Union who is entitled to exercise his citizenship rights as against the member state of which he is a national (Rottmann; Zambrano). The right to vote is a fundamental citizenship right (Article 20(2)(b); Eman and Sevinger). The ECHR case law establishes that disenfranchisement of convicted prisoners is incompatible with fundamental rights. The relevant provisions of UK legislation accordingly deprive the petitioner of the genuine enjoyment of his citizenship right, they contravene the EU principle of equal treatment and are incompatible with respect for his fundamental rights which are guaranteed both as general principles of EU law and as set out in the Charter of Fundamental Rights. In these circumstances it was the duty of the Court to provide an effective remedy for the contravention by the UK of the petitioner's EU citizenship rights. This would be achieved by disapplying the legislation which failed to respect the petitioner's EU law rights: see e.g. Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim, Case C-409/06 (8 September 2010) at paragraphs 54-57, 61, reiterating principles established in previous judgments such as the Factortame series of cases. This duty is incumbent not only on the national courts but also on national public institutions and administrative authorities, including the first and second respondents: see e.g. Petersen v Berufungsausschuss für Zahnärtze für den Bezirk Westfalen-Lippe, Case C-341/08 (12 January 2010). It extends to granting effective interim relief. So, for example, if a national court considered it necessary to make a reference to the European Court under Article 267 TFEU for a preliminary ruling, such interim relief should be granted as was necessary to ensure the full effectiveness of the judgment to be given on the existence of the right claimed (Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271 at paragraph 77, applying Factortame).

[21] In the present case, it was submitted that in order to provide an effective remedy, it was the duty of the court to disapply, with regard to the petitioner, the reference in section 3(1) of the 1983 Act to a convicted prisoner being legally incapable of voting in local government elections. It was also necessary, in order to link the petitioner's voting entitlement to a particular constituency and thus entitle him to be registered in the local government register of electors, to disapply section 5(6) of the Act to the extent that it treats a convicted prisoner as not being resident in the place where he is detained.

 

Argument for the first respondent

[22] The first respondent lodged brief answers stating that as a statutory office holder he was obliged to apply the terms of section 3(1) of the 1983 Act, which contained a clear and unambiguous prohibition on a convicted prisoner voting in any parliamentary or local government election. All other Electoral Registration Officers in Scotland continued to apply section 3(1) in the same way to applications for registration by convicted prisoners.

 

Argument for the second respondent

[23] The second respondent's argument was presented as three propositions. First, it was submitted that no application for judicial review could competently be made because the petitioner had failed to avail himself of the statutory remedy provided by the 1983 Act (the relevant provisions of which are summarised above). Not only was the statutory appeal procedure an alternative remedy: it was an effective remedy for the purposes of both domestic law and EU law. If the petitioner was correct in his argument that it was the duty not only of a UK court but also of a national administrative authority to disapply legislation which failed to respect the petitioner's EU law rights, then it followed that the arguments advanced in these proceedings could equally be advanced in the statutory appeal to the sheriff and in any further appeal to the Registration Appeal Court. If there was a difficulty regarding the limited jurisdiction of the sheriff or of the court in a statutory appeal then, on the petitioner's argument, that limit could itself be disapplied to enable the EU law right to be respected. There is nothing in the 1999 Act of Sederunt which would preclude the sheriff from granting interim relief. Any entitlement of the petitioner to Francovich damages could (on the petitioner's argument) be determined in the course of the statutory appeal procedure or, in any event, by a stand-alone action which could not in any event be brought unless and until his EU law rights have been violated by his being unable to vote on 5 May.

[24] So far as delay in achieving finality was concerned, there was no material advantage in judicial review proceedings: it was no more difficult to convene the Registration Appeal Court at short notice than it would be to convene a Division of the Inner House to hear a reclaiming motion in the present proceedings, and the Registration Appeal Court had the advantage that no further appeal lay from its decision. On the facts of the present case, the petitioner received his appealable decision in the first respondent's letter of 17 December 2010. He has had ample time to avail himself of the statutory appeal procedure. He may still apply for a postal vote prior to the deadline on 14 April, and could be registered as a voter at any time up to 9 pm on the date of the poll if he receives a decision of the court in his favour.

[25] It was acknowledged by counsel for the second respondent that in one respect there had been a failure by the first respondent to comply with the statutory procedure. Section 56(1) of the 1983 Act excludes a right of appeal to the sheriff where the person desiring to appeal has not availed himself of a prescribed right to make representations to the registration officer on the matter which is the subject of the appeal. The relevant right to make representations is contained in regulation 29(6) and (7) of the Representation of the People (Scotland) Regulations 2001 (SI 2001 no 497), in terms of which a registration officer who intends to refuse an application for registration must send the applicant a notice stating the grounds for his opinion and that he intends to disallow the application unless the applicant gives notice within three days that he requires the application to be heard at a hearing at which he may make representations. No such notice was sent to the petitioner. Counsel submitted that in these circumstances the right of appeal to the sheriff was not excluded or, in any event, that the involvement of this court in any judicial review proceedings would be limited to securing the petitioner's right to make representations and did not open up an alternative appeal structure in place of the statutory one.

[26] The second proposition was that the petition was irrelevant because the petitioner offered no place of residence relevant to an application for registration other than HM Prison Dumfries which, by virtue of section 5(6) of the 1983 Act, was not a place at which he could be treated as resident. It was accepted, however, that this argument depended upon the decision of the court on the petitioner's argument based on EU law rights and need not be addressed separately.

[27] Thirdly, it was submitted that EU law was not applicable to the issue of voting by UK nationals in UK municipal elections, and still less to an election to the Scottish Parliament, which is not a municipal election for the purposes of EU law. As regards the first part of this proposition, it was clear from the terms of Article 20(2)(b) that it applied only to nationals of a member state other than their state of residence. Emphasis was also placed on the end words of Article 20(2) (quoted in paragraph 15 above). They were a reference inter alia to Articles 21 to 24 which followed and which were among the conditions and limits defining the rights contained in Article 20(2)(a) to (d) respectively. Looking at Part 2 of TFEU in its entirety, Article 20(2)(b) was not intended to create a stand-alone right broader than that detailed in Article 22. In Eman & Sevinger, the European Court of Justice had affirmed that what is now Article 22 could not be founded upon by "same state" nationals. In Government of the French Community v Flemish Government, Case C-212/06 (1 April 2008), the Court had stated in terms that citizenship of the Union is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law. To treat Article 20(2)(b) as applicable to the petitioner's voting rights in his own member state would be inconsistent not only with the express qualifications contained in Article 20(2) but also with the decision of the Court in Government of the French Community. The Charter of Fundamental Rights added nothing to the petitioner's rights. So far as municipal elections are concerned, Article 40 is in the same terms as Article 20(2) TFEU, albeit with a comma omitted. Article 51 confirms that the Charter creates no new rights; Protocol 30 is not an "opt-out" but merely underlines that the effect of the Charter is to affirm existing EU law rights and not to add to them.

[28] In any event, counsel for the second respondent submitted that the Scottish Parliamentary election was not a municipal election within the scope of Article 20(2)(b) TFEU. Detailed arrangements for the exercise of the right to vote in municipal elections by citizens of the Union residing in a member state of which they are not nationals, as envisaged by what was then Article 8b of the Maastricht Treaty, were made by Council Directive 94/80/EC of 19 December 1994 ("the 1994 Directive"). In this Directive, the expression "municipal elections" means elections to appoint the members etc of a "basic local government unit", defined in turn as the administrative entities listed in the Annex to the Directive which contain bodies empowered to administer, at the basic level of political and administrative organisation, certain local affairs on their own responsibility. When, however, one turns to the Annex, one finds that the "basic local government units" specified for the United Kingdom include regions and Islands in Scotland and districts in Scotland. Article 2(2) of the Directive obliges member states to notify the Commission of any change in its domestic law which replaces a unit referred to in the Annex by another unit. After certain procedure, the Commission must adapt the Annex by making appropriate substitutions. For whatever reason, it appears that no adaptation has taken place to take account of the local government reorganisation which took place in Scotland in pursuance of Part I of the Local Government etc (Scotland) Act 1994. But what mattered for present purposes was that the list in the Annex did not include the Scottish Parliament and so elections of its members are not "municipal elections" for the purposes of EU law rights. The question of what is or is not a municipal election is a matter for EU law; the administrative use of the Register of Local Government electors in terms of section 11 of the Scotland Act 1998 did not, and could not, make an election a municipal election for the purposes of EU law.

[29] Finally, as regards interim relief, Counsel submitted that the balance of convenience favoured refusal of an interim order. The test enunciated by Lord Goff in Factortame (No 2) ([1991] AC 603 at 674) for the granting of an interim order restraining a public authority was whether the challenge was "firmly based": the petitioner's case here was weak. Regard should be had to the problems which would be created if, votes having been cast by prisoners on the basis of an interim order in the petitioner's favour, the petition were ultimately refused and the votes were thus found to have been invalidly cast. In any event, if the court were to uphold the petitioner's arguments except in relation to the status of Scottish Parliament elections as municipal elections for the purposes of EU law, there was no need to grant an interim order because no local government election is imminent.

 

Reply for the petitioner

[30] On the points raised for the first time in the submissions on behalf of the second respondent, counsel for the petitioner responded as follows. The availability of a remedy by way of judicial review was not an issue of competency but of exercise of the court's discretion. There was no absolute rule that the existence of a statutory remedy excluded the supervisory jurisdiction of the court. Reference was made to Watt v Strathclyde Regional Council 1992 SLT 324, Lord Clyde at 332E-I, and to Clyde & Edwards, Judicial Review (2000) at paragraphs 12.12 to 12.18. An alternative statutory remedy had to be effective and not illusory so far as the particular circumstances of the applicant were concerned. That could not be said in the present case. It was uncertain whether a sheriff or the Registration Appeal Court hearing an appeal under section 56 of the 1983 Act was entitled or bound to give effect to EU law rights by disapplying the disenfranchisement provisions. There could be dispute as to whether the sheriff could competently refer the matter to the European Court of Justice for a preliminary ruling. It was doubtful whether the sheriff could grant an interim order, or Francovich damages. The decision of the High Court of Ireland in Minister for Justice, Equality and Law Reform v Director of Equality Tribunal [2009] IEHC 72 and the decision of the UK Supreme Court in R (Edwards) v Environmental Agency (No 2) [2011] 1 WLR 79 afforded examples of bodies with limited jurisdiction being held not to have jurisdiction to give effect to EU law rights. In any event there would be likely to be considerable delay in pursuing an appeal to the Registration Appeal Court and it was not conceded that there was no further right of appeal. In the meantime the right to vote in the forthcoming election would have been irrevocably lost.

[31] As regards the failure of the Electoral Registration Officer to comply with the requirements of regulation 29 of the 2001 Regulations, the court's supervisory jurisdiction was not restricted to putting matters back on track, which would not be an effective remedy because of the inevitable delay. The court would require to make such order as was required to provide an effective remedy.

[32] On the issue of whether the Scottish Parliamentary elections are municipal elections for the purposes of EU law, counsel submitted that the 1994 Directive was irrelevant because it applied only to the right to vote of a citizen resident in a member state of which he was not a national under what was then Article 8b of the 1992 Treaty and is now Article 22 TFEU. The concept of a "basic local government unit" was introduced by the Directive and could not be used to interpret the expression "municipal elections" appearing in Article 20(2) of the Treaty. The list in the Annex to the 1994 Directive did, however, provide some indication that the position adopted by the United Kingdom was that anything less than a national Parliamentary election was a municipal election, at least for the purposes of Article 22. The approach taken in section 11 of the Scotland Act 1998 was consistent with this. If, however, the court was in doubt as to the correct interpretation of the expression "municipal elections" in Article 20(2) then it should refer the question for a preliminary ruling, while ensuring by interim order that the petitioner's EU right to vote is protected in the meantime.

 

Discussion: alternative statutory remedy

[33] I accept the submission by counsel for the petitioner that the question of availability of judicial review should be viewed as a matter of discretion rather than of competency. There is no absolute rule that the availability of a statutory remedy renders unavailable the supervisory jurisdiction of the court, and the exceptions to the rule are not rigidly defined. I consider that the test to be applied, as counsel submitted, is whether the remedy is an effective one in the circumstances of the case in question. In the present case, the statutory appeal procedure was said not to afford an effective remedy for two reasons: firstly, because it would take too long to enable the petitioner's right to vote to be determined in time for the impending election and, secondly, because the range of powers available under the statutory procedure is inadequate to enable the petitioner's EU law rights to be vindicated.

[34] In my opinion the argument in so far as based on delay is clearly unfounded. It happens that in the present case the petitioner's application for registration was submitted some six months before the date of the election. The question whether the first respondent's letter of 17 December 2010 or the subsequent letter of 11 February 2011 should be regarded as an appealable decision to refuse registration is complicated by the fact that the statutory procedure for inviting representations was not adhered to. That, however, appears to me to be beside the point, because I do not consider that in the circumstances of this case either the date of application or the date of refusal is material to the issue of whether the statutory appeal procedure affords an effective remedy. It is clearly not the case that a petitioner can bring himself within the scope of judicial review merely by delaying taking action until it is too late for the statutory procedure to run its normal course. It was suggested that in the present case the petitioner was justified in having delayed making his application for registration until November 2010 because of the position adopted by the UK Government in response to the Hirst decision, i.e. that legislation to remove the blanket ban was under consideration. That had, however, been the position since at least 2006, and had not changed at the time when the petitioner submitted his application. It seems to me to be entirely arbitrary to assess the adequacy of the time available for the statutory appeal procedure to operate by reference to the date when the petitioner happened to submit his application. There are features of the statutory process which appear to me to be designed to facilitate the speedy resolution of an appeal against refusal of registration: firstly, the use of summary application procedure before the sheriff ensures that the appeal reaches a hearing as quickly as possible; and, secondly, the Rules of the Court of Session provide for an appeal by stated case to be put out for hearing "on the earliest available day". It was acknowledged by the court in Smith v Scott (at paragraph 31) that there was no further right of appeal. These features appear to me to indicate the availability of a procedure intended to produce a final decision with minimum delay. No doubt, in an appropriate case of urgency, the procedure could be further expedited.

[35] As regards the adequacy of available remedies, again I am not satisfied that the statutory procedure is deficient in its ability to give effect to any EU law right to which the petitioner may be entitled. As I understood the submission for counsel for the petitioner, it came down to expressing some uncertainty as to the power of the sheriff and/or the Registration Appeal Court to do various things such as granting an interim order or awarding Francovich damages. So far as the former is concerned, it appears to me that the petitioner's argument based upon the principle of the primacy of EU law (summarised in paragraph 20 above) would apply equally to the determination of the petitioner's appeal by the sheriff or, if necessary, by the Registration Appeal Court. This would include the granting of effective interim relief as required by the judgments of the European Court of Justice in Factortame (No 2) and Unibet. I am not persuaded that the mere fact that contrary arguments might be presented is a sufficient reason to conclude that the statutory remedy is less than effective. In this context I do not regard the decision of the Supreme Court in R (Edwards) v Environment Agency as being in point. The issue in that case was a straightforward one of the division of jurisdiction as between the House of Lords costs officers on the one hand and the court on the other. The fact that the way in which the costs officers were held to have exceeded their jurisdiction was by purporting to take into account Council Directives regarding access to environmental justice was incidental to the point at issue, which was the restricted scope of the cost officers' task. Nor is there any statutory restriction on the jurisdiction of either the sheriff court or the Registration Appeal Court as appears to have been the case with regard to the tribunal in the Irish decision to which reference was made. In this regard it may be noted that in Autologic Holdings plc v IR Commrs [2006] 1 AC 118, Lord Nicholls of Birkenhead observed at paragraph 21 that the Special Commissioners (a statutory tribunal) had power to give effect to all relevant directly applicable provisions of Community law and to refer any necessary question for a preliminary ruling. I see no obvious reason why the powers of a sheriff or of the court in an appeal under the 1983 Act should be more restricted.

[36] It may be that a claim by the petitioner for Francovich damages would have to be pursued in a stand-alone action. That does not, however, persuade me that the statutory appeal procedure does not provide an effective means of obtaining the primary remedy sought by the petitioner, namely registration in the Register of Local Government Electors. I was referred to the judgment of the European Court in Impact v Minister for Agriculture and Food [2008] 2 CMLR 1265 as an example of a case in which the Court had held that it was a breach of the principle of effectiveness of protection of EU rights for a member state to require a party to pursue a claim under national Directive-implementing legislation in a specialised court while requiring a parallel claim based on the direct effect of the Directive itself to be pursued in the ordinary courts. Again, I do not regard that decision, which relates to the unacceptability of requiring the pursuit of concurrent arguments for the same remedy in separate proceedings, as relevant to the question whether it would be a breach of the principle of effectiveness to require the petitioner to seek his primary remedy through the statutory procedure and then, at a later date, if and when it becomes apparent that he has failed to obtain the primary remedy to which he was entitled, to require him to pursue any claim which he may have for Francovich damages in separate proceedings. There would in my opinion be no material disadvantage over what the petitioner is attempting to do in the present application, namely to have his entitlement to vote declared in time for the election, failing which (and only in the event of ultimate success on the merits of the application), to pursue his claim for damages.

[37] For these reasons I hold that in the circumstances of the present case an application for judicial review is excluded by the availability of a statutory remedy which affords an effective means of seeking redress for any failure to respect the petitioner's right as a citizen of the European Union to be registered to vote in the forthcoming Scottish Parliamentary election. The matter accordingly falls within the restriction on availability of judicial review set out in Rule of Court 58.3(2) and the petition falls to be dismissed.

 

Discussion: EU law incompatibility of disenfranchisement of convicted prisoners

[38] In case this application is taken further, it may be of assistance if I also express my views with regard to the substantive matters raised by the application. It must be borne in mind that the motion before me was for an interim order only. However, counsel for the petitioner invited me to dismiss the petition if I were against him on his core argument based on the terms of Article 20(2) TFEU. Otherwise, and in particular if I regarded it as appropriate to make a reference to the Court of Justice for a preliminary ruling, it was submitted that I should make an interim order protecting the petitioner's right to vote in the election. Counsel emphasised that this was not a matter of a right to vote being conferred upon the petitioner: he had such a right, which (as the ECHR cases had established) had not been lawfully removed.

[39] I address first the argument that Article 20(2)(b) TFEU confers a directly-effective right to vote in municipal elections on an EU citizen resident in the member state of which he is a national. I accept the analysis of counsel for the petitioner that, following the recasting of the Treaty provisions in the Lisbon Treaties, the substantive right to vote in municipal elections is now contained in Article 20(2)(b) rather than in Article 22(1). However, I reject the submission that Article 20(1) creates a right which is distinct from and wider than that contained in Article 22(1) in that (unlike Article 22(1)) it applies to "same-state" nationals. It is apparent that the four sub-paragraphs of Article 20(2) confer rights of very disparate kinds. Some (e.g. the right to freedom of movement and residence in sub-paragraph (a)) are clearly applicable only in a cross-border context. Others (e.g. the right to petition the European Parliament etc in sub-paragraph (d)) have no cross-border element. Each must therefore, in my opinion, be considered separately but in the context of Part 2 TFEU read as a whole. In Article 20(2)(b), the words "under the same conditions as nationals of that State" which follow the comma are, in my view, critical. They make clear that the right which is conferred in the first part of the sub-paragraph is conferred upon citizens who are not "nationals of that State". Otherwise the comparison explicit in the words "under the same conditions" could not be made. Counsel for the petitioner argued that the purpose of these words was to recognise the principle of equivalence of treatment, as illustrated by the Eman and Sevinger case. I do not accept that Article 20(2)(b) on its terms is concerned with the principle of equivalence of treatment of "same-state nationals" as was the case in Eman and Sevinger. Such a reading would, in my view, be wholly inconsistent with the comparison between nationals and resident non-nationals of the member state in question which the final words of the sub-paragraph requires.

[40] Counsel placed considerable emphasis on the absence from Article 20(2)(b) of the words "residing in a member state of which he is not a national" which appear in Article 22(1) and its predecessors. In my opinion that emphasis is misconceived. I have already indicated my reasons for concluding that the wording of Article 20(2)(b) itself indicates a restriction of its scope to "second-state" nationals. It would, in my opinion, be odd if Article 22, which is described in the "Explanations" relating to the Charter of Fundamental Rights as providing the legal base for the adoption of detailed arrangements for the exercise of "that right" (i.e. the right guaranteed by Article 20(2)) in fact provided the legal base for the adoption of detailed arrangements for the exercise of a right of much more restricted scope. No such mismatch appears to me to occur in relation to the other sub-paragraphs of Article 20(2) and the corresponding provisions of Articles 21, 23 and 24. That being so, I conclude that far from emphasising a distinction between the scope of Article 20(2)(b) and Article 22(1), the words in the latter article upon which counsel founded afford support for a reading of the former article which restricts its application to "second-state" nationals. I also conclude that as the two provisions have the same scope, the observations of the Court of Justice in Eman and Sevinger at paragraph 53 regarding the inapplicability of what is now Article 22(1) to a citizen of the Union wishing to exercise his vote in the member state of which he is a national apply with equal force to Article 20(2)(b).

[41] The cases of Rottmann and Zambrano to which reference was made do appear to me to support the proposition that EU citizenship rights can, in appropriate circumstances, be asserted without the need to demonstrate a cross-border element as between member states. However they are not, in my opinion, in point in the present case, where the right arising from EU citizenship which is created by the Treaty is clearly one which is conferred only upon persons resident in a member state of which they are not a national. It follows, therefore, that the right of a national of a member state to vote in municipal elections in that state is not an EU law right whose exercise is governed by the provisions of the Treaties.

[42] Nor, in my opinion, does reference to the Charter of Fundamental Rights add anything to the petitioner's argument. As Article 51 makes clear, the provisions of the Charter apply only when member states are implementing EU law. If, as I consider to be the case, the right to vote in municipal elections of "same-state" nationals is not an EU law right, the Charter has no application. In any event, Article 40 of the Charter is in terms identical to Article 20(2)(b). The preamble to Protocol 30 to the Charter confirms that the Charter makes rights recognised in the EU "more visible", but does not create new rights.

[43] I have reached my conclusion on the scope of the right conferred by Article 20(2)(b) without the degree of doubt which would render it appropriate for this court to make a reference to the Court of Justice for a preliminary ruling under Article 267 TFEU. The question of granting an interim remedy does not therefore arise. It is also unnecessary for me to address the issue of whether the Scottish Parliamentary election is a municipal election for the purposes of Article 20(2)(b) TFEU. This issue would only have arisen for decision if I had found that Article 20(2)(b) created an EU law right to vote in municipal elections of "same-state" nationals. For the sake of completeness, I should perhaps observe that on that hypothesis, I would have found it difficult to reach a view on the proper approach to interpretation of the expression "municipal elections" in Article 20(2)(b), and in particular on whether any assistance could be obtained in that connection from the definitions contained in the 1994 Directive laying down detailed arrangements for the exercise of the right to vote by "second-state" nationals in pursuance of what is now Article 22(1). As regards the latter, the absence of an up-to-date list of Scottish "basic local government units" in the Annex to the Directive would have introduced an unwelcome complication. I would not have been persuaded that the matter could be resolved by reference to the use, in accordance with section 11 of the Scotland Act 1998, of the Register of Local Government Electors to determine entitlement to vote in Scottish Parliamentary elections, for the reason submitted by counsel for the second respondent. If this point of interpretation had been critical to my decision, I would not have felt able to resolve it myself with "complete confidence" (R v International Stock Exchange of the United Kingdom and the Republic of Ireland, ex parte Else [1993] QB 534, Sir Thomas Bingham MR at 545) and would have regarded a reference as necessary.

[44] However, for these reasons which I have given, had I found the petitioner entitled in the circumstances averred to apply to the court by way of application for judicial review, I would, in accordance with the invitation by counsel for the petitioners, have dismissed the petition.