England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 May 2014

Mr Justice Collins :

1. The claimant, originally from Somalia, sought asylum in Holland in 1986 and in 1995 was granted Dutch nationality. In 1997 he came to this country where he committed a murder of which he was convicted on 25 February 2000. He was sentenced to life imprisonment with a tariff period of 14 years. When this claim was lodged in August 2012 he was still serving that sentence in this country but his tariff had been completed on 10 December 2012. Two days later he was deported to the Netherlands.
2. By letter dated 24 April 2012 solicitors on his behalf wrote what was described as a pre-action protocol letter to the Secretary of State for the Home Department complaining that he, as an EU citizen, had been wrongly deprived of his right to vote in local elections and elections to the EU Parliament. He sought an order that he should be permitted to vote, that legislation should be introduced to rectify the alleged incompatibility of Section 3(1) of the Representation of the People Act 1983 with EU legislation and damages for his disenfranchisement.
3. As was pointed out in the response to this letter, a similar challenge had been rejected by the Court of Appeal in R(Chester) v SSJ [2012] 1 WLR 1436. By the time permission was considered by Lang J on the papers Chester's case together with a case from Scotland, McGeoch v Lord President of the Council, were due to be heard by the Supreme Court. It was suggested that this claim be joined to those, but that would hardly have been feasible. Lang J decided that there were distinctions between this claim and the two before the Supreme Court (they each concerned British citizens) which meant it was "appropriate to grant permission at this stage" but a hearing should not take place until the Supreme Court had given judgment.
4. Lang J gave permission on 7 February 2013 by which time the claimant had left this country so that it was probable that this claim had become academic. As will become clear, the judgment of the Supreme Court given on 16 October 2013 shows that this claim is unarguable and totally without merit.
5. Both Chester and McGeoch were serving life sentences for murder. Chester's claim relied on Article 3 of Protocol 1 to the ECHR as interpreted by the ECtHR in Hirst v UK (No 2) (2005) EHRR 849. The decision in Hirst had led to a declaration of incompatibility by the Scottish Registration Appeal Court in Smith v Scott [2007] SC 348 but no steps had been taken by Parliament to amend the law disenfranchising prisoners. McGeoch's claimed relied solely on EU law. The leading judgment with which the majority of the court specifically agreed was given by Lord Mance. There was a separate judgment from Lady Hale with whom Lords Hope and Kerr specifically agreed. She did not in any way disagree with Lord Mance. She expressed some sympathy with the view of the ECtHR that 'our present law is arbitrary and indiscriminate' but in paragraph 99 she said this:-

"However, I have no sympathy at all for either of these appellants. I cannot envisage any law which the UK Parliament might eventually pass on this subject which would grant either of them the right to vote. In Hirst v UK (No 2) the Strasbourg Court declined to conclude that applying the law to post-tariff life prisoners would necessarily be compatible with Article 3 of the First Protocol. But it seems clear from the decision in Scoppola v Italy (No 3) (2012) 56 EHRR 663 that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was a power of review."

6. The claimant's case depends on the application of EU law, not directly the ECHR. The distinction between this case and those of Chester and McGeoch lies in the claimant being a citizen of the EU rather than a British citizen. However, the argument relied on is that the ECHR when read with the EU Charter of Fundamental Rights means that parallel rights should be given to at least the same level of protection as that given by the ECtHR. Sometimes a higher level is required. But it cannot be suggested that some disenfranchisement of serving prisoners would be contrary to EU law. Thus Lady Hale's observations, which reflect the approach of all the members of the Supreme Court, are highly material. They clearly indicate, as will be apparent when I consider what Lord Mance said on the EU aspect, that whether or not the blanket disenfranchisement is contrary to EU law this claimant has suffered no deprivation and so could not obtain any relief. He has no claim.
7. The claimant has produced a very detailed and elaborate skeleton argument. However, it is not in my view necessary to deal with it since the decision of the Supreme Court is fatal to the claim. Lord Mance summarised his conclusions in Paragraph 4. The material conclusions are:-

"a. In respect of McGeoch's and Chester's claims under European Law, which can at most relate to elections to the European Parliament and municipal authorities …, I conclude that European law does not incorporate any right to vote paralleling that recognised by the ECtHR in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely.

b. Had European law conferred any right to vote on which McGeoch and Chester can rely: …

v. Neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or European Parliamentary Elections Act section 8 …"

8. Mr O'Neill represented McGeoch in the Supreme Court and so no doubt all the available European law arguments were fully presented. He submits that the decision on European law is obiter. Whether or not that is technically correct (and since McGeoch's case depended on European law it probably is not) the conclusions were reached following detailed argument and are agreed to by all the members of the Court. They thus carry very great weight and should be followed by this court unless persuaded that they may be wrong. I put it that way since the thrust of Mr O'Neill's argument is that there is, when the CJEU case law is fully considered, a question which should be referred to that court. He submits that whether or not technically binding this court should in the circumstances not follow the Supreme Court's decision but should make a reference to the CJEU.
9. The argument is in the light of Lord Mance's reasoning hopeless. Mr Southey, Q.C. on behalf of Chester, had submitted that the principles recognised by the ECtHR in Hirst (No 2) and Scoppola should be incorporated into EU law. Mr O'Neill on behalf of McGeoch did not go so far as that. He relied on Articles 20 and 22 of the CFEU. Those so far as material read:-

"20(2) Citizens of the Union … shall have, inter alia: …

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

22(1) Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote … at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogation where warranted by problems specific to a Member State. "

Article 22(2) uses the same words to deal with elections to the European Parliament.

10. These Mr O'Neill submitted should be read with Articles 39 and 40 of the EU Charter of Fundamental Rights (CFR). These repeat that every citizen of the Union must have a right to vote in elections to the European Parliament (Article 39) and in municipal elections (Article 40) "in the Member State in which he or she resides under the same conditions as nationals of the State".
11. It is apparent that a citizen of the Union residing in a Member State which is not that of which he is a citizen has no greater right than that enjoyed by a citizen of the state in which he is residing. Thus, if citizens of the UK can lawfully be disenfranchised while serving a sentence of imprisonment, members of other states in the same situation can equally be lawfully disenfranchised.
12. Lord Mance considered and rejected Mr O'Neill's attempt to rely on the principle of non-discrimination. Reliance was placed on two judgments issued on the same day, Spain v UK [2006] ECR 1-7917 and Eman & Sevinger v College van den Haag [2006] ECR 1-8055. The Spain case involved the question whether it was legitimate under European law for the UK to extend the franchise in European Parliamentary elections to qualifying Commonwealth citizens registered in Gibraltar. The Eman case concerned the legitimacy under European law of a provision in Dutch law conferring a right to vote in European Parliamentary elections on Dutch nationals residing abroad except in Aruba and the Netherlands Antilles.
13. In paragraph 58, Lord Mance observed that the Court of Justice did not in their cases endorse Advocate General Tizzano's broad approach based on the right to vote being a fundamental right. Lord Mance said:-

"Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member states or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at European Community or Union level, it could also lead to further conflict and uncertainty. Hence the Court of Justice in Eman confined its reasoning to a well-established core principle of Treaty law, that of non-discrimination, in that case between different categories of Dutch nationals …"

14. There is no discrimination between UK nationals and EU citizens residing in the UK. Further, as Lord Mance stated, there is no basis for any claim that convicted prisoners are discriminated against by reference to free persons or remand prisoners.
15. In Paragraph 83 Lord Mance stated that any claim for damages could not succeed even if European law could be invoked in the appellant's favour. This was because in McGeoch's case, he was still serving the 'punishment part of his sentence' and there could, 'in the light of Scoppola, be no question about the UK's entitlement to deprive a prisoner in his position of the right to vote'. Lady Hale made the same point. This establishes that this claim, whether or not the Supreme Court was correct in its decision in relation to European law, produces no possible benefits for the claimant and is therefore bound to fail.
16. In Paragraph 84, Lord Mance considered whether there was a need to make a reference to the CJEU. He stated:-

"This depends upon whether it depends upon the determination of any question of European law which is open to reasonable doubt … In my opinion, the conclusions of European law reached [in my judgment] are acte clair, and they are by themselves sufficient to resolve the appeals. Were it necessary for the decision of these appeals, I would also regard the conclusions in paragraph 60 as acte clair … In the circumstances I do not consider that any reference to the Court of Justice is called for. "

17. In Paragraph 70, Lord Mance had rejected the submission that the right recognised by European law would or might go further than the Strasbourg case-law in allowing convicted prisoners the vote. That submission has been relied on before us by Mr O'Neill. As Lord Mance indicated, the jurisprudence of the CJEU pays close attention to and, with very few exceptions, follows Strasbourg jurisprudence. I respectfully entirely agree with Lord Mance and the attempt by Mr O'Neill to revive the argument must be rejected.
18. Not only do I not have any reasonable doubt of the correctness of the decision of the Supreme Court in Chester and McGeoch but I agree with it. As I have said, whether or not it is strictly binding, I would in any event have thought it right to follow it. It is after all a decision concurred in by seven Supreme Court judges following full argument. Furthermore, while of course any level of court has the power to make a reference to the CJEU, in a case where the Supreme Court has expressly decided that no reference is needed it would be wrong for a court at this level nonetheless to make a reference.
19. I would only express my concern that legal aid was extended once the decision of the Supreme Court was known. It should have been obvious, particularly as the claimant was no longer in this country, that the claim had become unarguable. I can understand that once a judge had granted permission, prima facie an extension of legal aid was considered appropriate. I have already expressed my views on the appropriateness of the grant of permission, but it was incumbent on those representing the claimant to have advised those responsible for granting legal aid of the decision of the Supreme Court and its effect. I am well aware of the measures being taken to save money paid through legal aid and it would in my view assist that exercise if the court were given the power to direct that no or only a fraction of sums claimed by representatives of parties to whom legal aid had been granted should be allowed if it was or should have been clear that the claim was bound to fail. I have no doubt that this claim would have met that test.
20. For the reasons I have given I would dismiss this claim.

Lord Justice Moses:

21. I agree that this claim should be dismissed. There are, in my view, aspects of the decision of the Supreme Court, as explained by Lord Mance, which are binding on this court.
22. Lord Mance was careful to draw a distinction between those parts of his judgment which were ratio decidendi and those which were not, in his summary (Paragraph 4(B)(a)). He concluded that European law does not incorporate any right to vote parallel to that recognised in Strasbourg nor any other individual right to vote.
23. The essential and binding reasons for that conclusion were that Strasbourg jurisprudence was the primary control on voting requirements [58] and that the Treaty provisions concerning individual voting rights contained in Articles 20(2) and 22 TFEU were concerned with equality. There is no inequality whatsoever between an EU citizen serving life and a citizen of the United Kingdom [63] and [64] in the same position.
24. Despite the binding and conclusive reasoning of the Supreme Court, it was argued that this court should, at the very least, refer a question to the Court by virtue of its obligations under s.3(1) of the European Communities Act 1972. In Conde Nast Publications Limited v Commissioners of HMRC [2007] 2. C.M.L.R. 35, Chadwick LJ was prepared to assume that a court might not follow its own earlier decision where a judgment of the Court of Justice had been the subject of further consideration [44]. The principle, if it is correct, applies a fortiori, in relation to a binding decision of a higher court. But in any event it has no application here.
25. Quite apart from the wholly academic nature of the dispute since this claimant has gone and cannot return, this seems to me an absurd claim. I understand why, in the state of the law at the time, the judge was prevailed upon to grant permission. With hindsight, an adjournment would have afforded the opportunity of refusing permission in the light of the decision in Chester and declaring it to be totally without merit.