Case Preview: Chester v SSJ; McGeoch v Lord President of the Council
03 Wednesday Jul 2013
There are before the UKSC, the hearing dates were 10-11 June 2013, two cases of quite some constitutional significance: McGeoch v Lord President of the Council (on Appeal from the Inner House of the Court of Session  CSIH 67) and Chester v Lord President of the Council (on appeal from the Court of Appeal, Civil Division  EWCA Civ 1439) The former is a prisoner serving a life sentence, and the latter is a prisoner serving a post-tariff indeterminate sentence.
The appeals concern the extent to which UK policy on the (non-)grant of voting rights to serving prisoners is affected not just by the ECHR, but also by EU law (including the Charter on Fundamental Rights (CFR)), as well as the right/duty of the UK courts to grant declarations of rights, especially under EU law.
The cases concern as their central issue the rights of convicted prisoners to vote in elections to the European Parliament, in national elections and local or municipal elections in the UK, as defined under the ECHR and EU law while serving a prison sentence. The two prisoners (both on life tariffs), whose appeals these are, are unlikely, on the latest indications from the Government, ever to obtain a right to vote whilst serving time in prison, when set against the range of current possible options it has given Parliament to consider (the Government has been considering a range of possible voting rights for serving prisoners including providing for those sentenced to and serving up to 4 years imprisonment to be able to vote).
Although EU arguments have figured prominently in the McGeogh case from the start, they are also material to the determination of the Chester case.
The key issues are:
(i) the effect of the ECHR Strasbourg Court’s various rulings on inter alia Protocol 1, Article 3 on the right to free elections to national legislatures – Hirst v UK, and various subsequent endorsing Judgments) to the effect that the UK’s blanket ban against convicted persons serving sentences in prison being able to vote in elections in the UK; and of those subsequent Judgments which in essence have determined that the time by which the UK should have complied so as to bring itself into compliance with its ECHR obligations has now passed;
(ii) the impact if any for this purpose of the UK Parliament’s continued stance to the effect that in substance it will not act to alter the law, although there are “noises off” that the blanket ban is accepted as not in compliance and that some serving prisoners should get the vote (though note that such a concession in the lower courts is subject to a request to the UKSC for that concession to be withdrawn);
(a) whether EU law itself grants all EU citizens by way of directly effective provisions a right to vote in European Parliament elections and also in Member State “municipal” elections where the person seeking to vote is not a national of another Member State but residing in the UK but is a UK national “residing” in the UK (though note that there is a further case pending in the UK involving a serving prisoner in the UK who is of joint Dutch and Ethiopian nationality/ies); and
(b) whether elections to the Scottish Parliament are within the EU provisions on the grounds that they are “municipal” elections within Article 20(2)(b) TFEU, as further implemented by Directive 94/80 as being those for a “basic local government unit” (but where the Scottish Parliament is not so included as such in the Directive’s prescribed Annex of listed “municipal” units);
(iv) the impact of EU general principles of law, including protection of fundamental rights, proportionality and non-discrimination;
(v) the role of the courts in issuing declarations of incompatibility under the Human Rights Act 1998; and the rights to/duty of the courts to issue declarations of rights for effective judicial protection under EU law;
(vi) whether the cases are within the requirements for Francovich damages under EU law.
The Representation of the People Act 1983, s 3(1), as material, precludes all convicted persons, while serving their time in prison, from voting in elections in the UK. See also the European Parliamentary Elections Act 2002, s 8, in essence to like effect as regards their exclusion from voting in elections to the European Parliament (EP).
The UK has been held to have breached the ECHR, Protocol 1, art 3 (as material, providing for the right to vote and stand in national elections) since at least 2004 in an early Hirst Judgment. Its continued breach has been determined again since, with the most recent rulings to like effect being Scoppola v Italy (No 3) (2013) 56 EHRR 19 and Cucu v Romania (2012) ECHR 22362/06.
The UK Government has acknowledged that its failure to correct at least the RPA, s 3(1) leaves it in breach of its ECHR duties (although the Government has sought permission to withdraw its concession as to breach).
The appeals seek to rely on the judgments from the Strasbourg Court for ECHR/Human Rights Act 1998 purposes (the arguments for which are well known), but also to establish clear legal lines as regards rights and obligations in this area through EU law (the arguments for which are much less known). The latter is therefore the main focus of this Comment.
Two preliminary questions under Articles 20-22 TFEU, especially 20(2)(b) (the right of citizens of the EU to vote and stand in elections to the EP and in national municipal elections in their Member State of residence), with Articles 39 CFR (as regards elections to the EP) and 40 (right to vote in municipal elections) and Article 14(3) TFEU (right to universal suffrage in elections to the EP) are:
(a) whether that right to vote is only exercisable by a national of another Member State while residing in the Member State where the elections in question are taking place; and
(b) whether, “municipal” elections include elections to the Scottish Parliament.
As regards (a), the key question seems to be whether the reference in Article 20(2)(b) to EU citizens having the right to vote in their Member State of residence “under the same conditions as nationals of that State” means that that right is granted only to EU non-nationals in the Member State where the elections take place (as was held in clear terms in the Scottish courts).
The counter-factual argument here would seem to be that whilst the EU had thought to provide for non-nationals to be able to vote in another Member State’s municipal elections, it did not concern itself at all with whether that Member State had provided for an inclusive national electorate in the same elections. This would appear somewhat anomalous given the recitals to Directive 94/80 refer to establishing an ever-closer union and in a political context.
It might be thought that the approach adopted by the Scottish courts is to misconstrue the right, when set in context, as it could suggest that the opening words which suggest rights which should be available to all EU citizens regardless of where they are residing (cf Article 20(2)(d) – right to petition the EU Ombudsman) are then to be limited when it comes to voting.
Perhaps a more compelling, or certainly interesting, argument, and which the UKSC or the CJEU (if the case reaches there) may need to grapple with is whether the wording in question is there to show how far the right to vote is extended beyond what the drafters might have considered so obvious as not to have to mention it. That is, such wording may reflect the approach taken in cases such as those relating to the free movement of goods where measures hindering trade even within a Member State’s territory are considered covered by the treaty provisions against barriers to trade between Member States, on the grounds that it was considered by the CJEU that it went without saying that internal barriers would be understood to be eliminated or be non-existent within Member States under the Treaty and so such barriers were considered in any event as a matter of course under EU law to be eliminated for the purposes in question (cf Lancry Case C-363/93 and Ors  ECR I-3957; and JPMO Case C-293/02  ECR I-9580).
As to (b), the key question seems to be whether, when the Council of Ministers, under authority of the Treaty, adopted Directive 94/80 on inter alia the detail of “municipal” elections by defining them for these purposes as “basic local government units”, and naming such units in an Annex (selected then by the Member States), the EU was thereby (i) adopting once and for all which municipal elections would be within the scope of this provision; or (ii) allowing Member States to decide which elections were covered; and if the latter (iii) whether EU law could thereby be engaged to ensure that such elections were in substance to be within the Annex, even if not so listed or re-listed, so as to ensure that Member States could not take advantage of their own wrong in not so listing within the Annex genuinely “municipal” elections merely to stop non-nationals having the vote. It would not appear to be (i), as the Directive provides for amendment to the Annex. It clearly covers (ii), but the more interesting point is whether (iii) is engaged at all. Were it not, it would then be open to Member States to circumvent the rights on EU non-nationals to vote in that Member State’s “municipal” elections merely by it removing/causing to be removed existing municipal units from the Annex or by not notifying amendments to the Annex. (Formally, the Commission acts on notifications and effects any amendments.) Even assuming that a challenge could be made to a Member State’s failure to amend/cause the Annex to be amended the question then arises whether the basis of the challenge is that the relevant provisions create a directly effective right to individuals, otherwise disenfranchised; alternatively, a right to individuals to test by judicial review the margin of discretion of a Member State not to amend the Annex; or whether enforcement lies solely at the hands of the European Commission.
A further fundamental issue arises, namely, whether, the cited provisions of EU law, along with the EU principles of proportionality and non-discrimination mean that the blanket ban on all prisoners voting is not sustainable under or consistent with EU law.
The basics of the principles of proportionality and non-discrimination are too well known to call for further comment here.
However, as the Government has not adopted a position positing rights to vote for some serving convicted persons but not others on some potentially objective basis, the interesting quesiton under EU law is not simply therefore whether that itself means that the Government necessarily lacks a proportionate or rationally based justification (a number of Member States do provide for at least some prisoners to have voting rights), nor simply whether its stance is discriminatory (the UK allows other persons formally incarcerated/subject to restrictions on their liberty to be allowed to vote) but, rather, assuming discrimination, what effects then apply as regards those subject to a blanket ban. Under EU law, where there is discrimination (ie differential treatment without objective justification), the Member State (including the courts within the scope of their competences) is obliged to eliminate that differential treatment.
“Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by [the non-disadvantaged group]. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so.“
Issues such as the right to/obligation to make declarations of rights under EU law are well known and have been referenced in previous comment (see the Case Note and Comment in the ClientEarth case) and similarly as regards Francovich damages that they do not merit further comment here.
The issue as to the scope of rights to vote for UK (or other) prisoners under EU law has not been before the UKSC (or HL) before. The Appellants seek, as necessary and applicable, a preliminary reference as per Article 267 TFEU on the basis that the issue is either, novel, not acte claire (so as to preclude the obligation on the UKSC as a court against whose ruling there is no national judicial remedy to make a reference) or that at least the CJEU will be able to provide clarification as to the operation of EU law in relation to this issue.
It would be a very significant ruling if the EU Court of Justice were (assuming a preliminary reference were made by the UKSC to it) to uphold the rights claimed in these cases, engaging in such fundamentals as the right of a Member State to determine who is able to vote in national municipal elections and elections for the European Parliament. It would be of interest to see whether any such ruling then had effects also for the determination of those eligible to vote in national Parliamentary elections.