The judgments in R (Chester) v Secretary of State for Justice; R (McGeogh) v The Lord President of the Council and Another (Scotland) [2013] UKSC 63 were handed down in October 2013. They represented a return to the highest court of the UK on a politically thorny issue: the blanket disenfranchisement of all serving prisoners (with exceptions not material to the cases before the Court). The common judgment in both cases follows decisions of the lower courts at [2010] EWCA Civ 1439 and [2011] CSIH 67.

Both appellants had been convicted of murder and sentenced to life imprisonment. It is clear from the judgments of the seven justices that the position of the two appellants elicited no sympathy from them, and all considered that whatever the failings within the UK system they could envisage no circumstance where the appellants would be granted the vote even if the blanket ban on serving prisoners voting were relaxed along the lines of the most generous bases contemplated for Parliament’s consideration within the UK.

Of the many interesting legal issues raised in these cases (including discussion of the extent to which UK courts are required to follow Strasbourg case law, most usefully at paragraphs 25-35) are important questions of EU law, especially as regards the issue whether EU law, post-Lisbon, actually grants a right to vote in European elections and member state “municipal elections” to every EU citizen (as each the appellants is), as opposed simply to EU nationals residing in a member state of which they are not a national; as well as what is meant by the term “municipal elections” and whether elections to the Scottish Parliament is included in the latter term.

The Court maintained the position determined in Strasbourg in and following Hirst v UK (No 2) (2005) 42 EHRR 41 (App No. 74025/01) that the UK’s blanket ban was contrary to the ECHR rights to vote. It also held that EU law had no application to the cases before them, holding that EU law only protected a right to vote for, as material, non-UK EU nationals residing in the UK and only for elections to the European Parliament and municipal elections, which term did not include elections to the Scottish Parliament. The Court rejected the case that there was unlawful or any, discrimination under EU law, and held that the EU case law was clear and required no reference to the Court of Justice of the European Union (“CJEU”) on the issues. It still, however, conducted a lengthy review into the then hypothetical case as to what the situation would be if there was a tenable argument in principle for the application of EU law, in particular the principle against discrimination, to the cases before them, ultimately rejecting the argument that it was open to it as a court to remove all discrimination absent a determination by the UK Parliament as to which serving prisoners should be allowed the vote in order to comply with the Strasbourg case law against the UK’s blanket ban.

It is curious that the Supreme Court should have devoted such an amount of its judgment (paragraphs 65-83) to the hypothetical case under EU law and the application of principle of non-discrimination, and refused to refer the issues under EU law to the CJEU.

One core consideration which arises is whether EU law encompasses a right to vote in principle in elections to the European Parliament or in municipal elections, rather than simply a right for non-nationals in other Member States but only so far as the relevant domestic legislature permits.

This gives rise to two considerations: (i) whether such a right actually exists; and (ii) if so, what limits might be placed on that right to vote? It seems that the Court could envisage that, if there were a right to vote, then any restriction must be objectively justified and a blanket ban could not be so justified. On the core issue, whether EU law actually grants a right to vote, the Court felt able to reject this as if the point were obvious.

It might be wondered just how obvious such a conclusion really is. If a right to vote in elections to the European Parliament for nationals in a Member State were restricted on the grounds of, for example, colour, religion or sex it is difficult to envisage that the Court would have held that that was acceptable and did not, when applied as rules of the domestic Member State for the elections, infringe on the essence of the right to vote for EU citizens from another Member State seeking to vote in the same elections. If the premise is accepted that such a basis for exclusion from the right to vote is not acceptable as a matter of EU law, it can only be on the basis that the national exclusion impacts on the right to vote for all, including domestic nationals in that Member State and not simply on the basis of discrimination against a non-UK national on a prohibited ground. As the Court accepted that, as a matter of Strasbourg case law, the UK’s blanket ban is unlawful, and as EU law seeks to give effect to at least the principles of Strasbourg case law, it is curious that the Court should have considered itself able to reject without a reference to the CJEU the legitimacy of the blanket ban in a context of its accepted hypothetical case of an applicable non-discrimination rule under EU law.

It is at least arguable that in principle all spheres of EU law, including the Treaty and Treaty-based provisions as to voting rights under EU law, are subject to the EU general principle of proportionality. For a non-UK EU national to be excluded from voting in elections to the European Parliament when sentenced for example to imprisonment for 7 days across the elections day(s) in question might, at least, raise a query as to compatibility with EU law on proportionality grounds of the blanket ban on serving prisoners’ voting rights.

This leads back to reflection on whether EU law, when providing for a right to vote at all, was really only giving such rights, here to non-UK nationals residing in the UK, as exist in each individual Member State to vote or addressing a situation of equality as to voting rights on the assumption that the Treaty did not need to spell out a right to vote in principle for each Member State’s own nationals residing in the Member State of which they are a national in say elections to the European Parliament. The situation seems at least arguably akin to the situation regarding free movement of goods across internal borders within a Member State, when the then ECJ has held that such restrictions, which would have been prohibited if relating to cross-Member State boundaries, had been assumed in the Treaty to have been eliminated internally and so were also prohibited even though not expressly so stated in the Treaty.

It may be a matter of regret to some, including those in favour of the blanket ban on serving prisoners’ voting rights, that no reference was made to the CJEU on the EU law issues, as that would have allowed them the opportunity to have argued and succeeded before the CJEU, and hence conclusively as to all Member States, on the blanket ban. Similarly as to whether in fact elections to the Scottish Parliament, as a non-national Member State legislature, were under EU law municipal elections. A recent Court of Session judgment on this topic is available here.