Scottish Court of Session Decisions

Petitioners: O'Neill, Q.C., Carmichael; Balfour & Manson (for Taylor & Kelly, Coatbridge)

Secretary of State for Scotland: Advocate General for Scotland, Doherty, Q.C.; C Mullin

Scottish Ministers: Cullen, Q.C., Mure; R Henderson

20 April 2007

[1] The petitioners are both serving lengthy prison sentences and as a result are disenfranchised in respect of parliamentary and local elections in terms of section 3(1) of the Representation of the People Act 1983, as amended (the 1983 Act). So far as relevant section 3(1) provides:

Following the decision in Hirst v UK (No.2) (2005) 42 EHRR 41, the Registration Appeal Court in Smith v Scott 2007 SLT 137 declared that section 3(1) of the 1983 Act is incompatible with article 3 of the first protocol to the European Convention on Human Rights (the Convention) which provides:

"The high contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

In Hirst it was decided that article 3 of the first protocol guarantees individual rights, including the right to vote. Universal suffrage is the basic principle. Prisoners do not automatically forfeit their right to vote, and any restrictions applied to them in pursuit of a state's margin of appreciation must be proportionate and justified by a sufficient link between the sanction and the conduct and circumstances of the individual concerned. However section 3(1) of the 1983 Act imposes a blanket restriction which applies automatically to all prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances, and thus falls outside any acceptable margin of appreciation. In Smith the Registration Appeal Court decided that section 3(1) could not be "read down" in a manner which would remove the incompatibility identified by the Strasbourg court. While the UK Government is taking steps to introduce a Convention compliant alteration to the law, this process will take some time to complete. The Registration Appeal Court observed that in the meantime it is apparent "that the Scottish parliamentary elections in May 2007 will take place in a manner which is not Convention compliant." In these circumstances it was considered appropriate to declare the incompatibility between section 3(1) of the 1983 Act and article 3 of the first protocol to the Convention.

[2] As required by section 2(2) of the Scotland Act 1998 (the Scotland Act), elections to the Scottish Parliament will be held on 3 May of this year. In pursuance of the powers contained in sections 12 and 113 of the Scotland Act the Secretary of State for Scotland (the Secretary of State) has made the Scottish Parliament (Elections etc) Order 2007 (the 2007 Order) to provide for the conduct of those elections and related matters. That Order contains provisions which reflect the legal incapacity to vote set down in section 3 and related provisions of the 1983 Act - see articles 11(3), 22(2) and 27(1). Parliamentary elections and the franchise for such elections are reserved matters outside the devolved competence of the Scottish Executive. However the poll on 3 May will be combined with local government elections which do fall within the jurisdiction of the Scottish Executive. The Scottish Executive has acted along with the Electoral Commission to publish a website entitled "Vote Scotland", which is designed to increase awareness of and voting in the forthcoming elections. It has also participated in the "Vote Scotland" campaign, which has similar aims. As the body responsible for the local government part of the combined poll the Executive has co-operated with others in respect of activities relating to the election and the conduct of the election. Funding is apportioned according to statutory responsibilities. In correspondence with agents for the petitioners earlier this year, the office of the Advocate General for Scotland informed those agents that the Secretary of State has not and will not ask the Scottish Ministers to act as his agent in respect of any of his functions concerning the parliamentary elections on 3 May.

[3] Against this background the petitioners have raised applications for judicial review, essentially challenging the legality of the 2007 Order in that it contains provisions which are incompatible with their Convention rights under article 3 of the first protocol. They also challenge the legality of the involvement of the Scottish Executive in the forthcoming elections. The Registration Appeal Court has said that the elections will take place in a manner incompatible with the Convention, thus the petitioners contend that, given the terms of section 57(2) of the Scotland Act, the Scottish Ministers have no power to do anything in relation to the elections. So far as relevant section 57(2) provides:

The 2007 Order
[4] In advance of the hearing counsel for the petitioners lodged a lengthy note of argument and several lever arch files of authorities. In the result little of this material was directly relevant to what Mr O'Neill described as a "short and essentially uncomplicated" submission relating to the alleged illegality of the 2007 Order and the Secretary of State's actings in laying it before Parliament. Only a few of the authorities were referred to in the course of the discussion. The case for the petitioners in respect of the 2007 Order and the Advocate General's response can be summarised as follows. Mr O'Neill recognised that the effect of section 4(6) of HRA is that, notwithstanding the declaration of incompatibility in Smith, the restriction on prisoners' capacity to vote contained in section 3 of the 1983 Act remains in full force and effect. Further, while in terms of section 6(1) of HRA it would be unlawful for the Secretary of State to act in a manner incompatible with a Convention right, section 6(2)(b) disapplies that provision

[5] The principle of legality was central to Mr O'Neill's submission. He referred to two cases in which it is discussed. The first and the main authority was R v Secretary of State for the Home Department, ex parte Simms and Another [2000] 2 AC 115. The case concerned two prisoners convicted of murder. Despite a refusal of their appeals, they continued to protest their innocence. They were visited in prison by journalists who intended to publicise their stories. The prisoners hoped that this would lead to new evidence and a further review of the safety of their convictions. Relying on a policy of the Home Secretary, the prison authorities, having become aware of the prisoners' intentions, refused further visits unless the journalists gave undertakings that any information obtained would not be used for professional purposes. No such undertakings were given, so no further visits took place. The prisoners raised applications for judicial review of the decisions to refuse the visits on the basis that they amounted to an unlawful restriction on their right to free speech, and in particular to continue to press for a reconsideration of their convictions. Section 47(1) of the Prison Act 1952 enabled the Home Secretary to make rules for, amongst other things, "the regulation and management of prisons ... and for the ... treatment, employment, discipline and control of persons required to be detained therein." The power to make such rules was exercisable by statutory instrument. Rules were made which, amongst other things, gave prison governors power to refuse visits by journalists and to require that any visits would be conducted on the basis of an undertaking that they would not be used for professional purposes. An appeal to the House of Lords was upheld on the basis that there had been an unjustifiable curtailment of the prisoners' right to freedom of expression. General powers of decision-making conferred by statue were presumed to have been enacted as subject to fundamental civil liberties, and thus the policy of the Home Secretary of an indiscriminate ban on interviews with journalists was unlawful. At page 131 Lord Hoffmann indicated that he wished to add a few words about the importance of the principle of legality in a constitution which acknowledges the sovereignty of Parliament. He said:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to the fundamental principles of human rights. The Human Rights Act 1998 will not detract from its power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

The other case relied on by Mr O'Neill was Watkins v Secretary of State for the Home Department and Others [2006] 2 AC 395, which concerned a claim for damages for misfeasance in public office, and in particular prison officers acting in bad faith when opening prisoners' mail in breach of prison rules. Specific reference was made to paragraph 61 in the opinion of Lord Rodger of Earlsferry:

"... in a system of universal suffrage today the right to vote would fall within everyone's notion of a 'constitutional right' and, doubtless, the principle of legality would apply in construing any statutory provision which was said to have abrogated that right."

[6] It was explicit in Mr O'Neill's appeal to the principle of legality that attention must be focused on the terms of section 12 of the Scotland Act as the statutory provision which gives power to the Secretary of State to make provision for the conduct of elections to the Scottish Parliament, and that the search is for a clear expression of the UK Parliament's will that those elections can take place in a manner which is incompatible with the Convention. So far as relevant, section 12 of the Scotland Act provides:

[7] In general I consider that Mr O'Neill's approach in focusing solely on section 12 of the Scotland Act is too narrow and restrictive. Section 12 is immediately preceded by section 11(1), which deals with the franchise for elections for the Scottish Parliament, and provides:

This is a clear expression of a Parliamentary intention that the normal rules as to the franchise, including the restriction in section 3 of the 1983 Act, should apply to elections to the Scottish Parliament. It also suggests that section 12 is intended to do no more than enable the necessary arrangements for the conduct of elections to the Scottish Parliament and related matters, and that one would not expect provisions relating to the scope of the franchise to be found in section 12. Further and in any event, and indeed as Mr O'Neill submitted, the Scotland Act should be interpreted in the context of the more or less contemporaneous HRA. Section 6(2)(b) of HRA rebuts any illegality arising from incompatibility if and when a public authority is applying the terms of primary legislation. Clearly this is designed to preserve the supremacy of the UK Parliament. In my view it is clear that the articles of the Order complained of, insofar as they reflect the terms of section 3 and related provisions of the 1983 Act, are giving effect to those provisions, all as allowed by section 6(2)(b) of HRA. In these circumstances the common law principle of legality does not arise. It cannot supersede the protection provided by section 6(2)(b) in a situation where without that protection there would be a clear illegality arising from the terms of section 6(1). Indeed, as Lord Hoffmann observed in R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 in paragraph 51 of his opinion: "Section 6(2) was designed to preserve the sovereignty of Parliament." He continued:

"If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation."

Similarly the court should be careful not to grant a remedy which flies in the face of the Westminster Parliament's intention clearly expressed in primary legislation. Mr O'Neill encouraged me to treat the common law principle of legality as something which can operate separately from and independently of the statutory protection in section 6(2)(b), but I consider that there is no sound basis for that proposition. As Lord Hoffmann observed in Simms, which was a case dealing with events prior to the commencement of HRA, the principle of legality has been incorporated into HRA in section 3. He continued by noting that a declaration of incompatibility is available when (as is the case with section 3 of the 1983 Act) legislation is so clearly expressed as not to yield to the principle of legality. "It will then be for the sovereign Parliament to decide whether or not to remove the incompatibility." This is exactly the position in respect of prisoners' voting rights in the wake of Hirst and Smith and in the light of the UK Government's ongoing efforts to amend section 3 of the 1983 Act. In due course, barring some unforeseen development, the UK Parliament will have an opportunity to remove the incompatibility. In Watkins at paragraph 64 Lord Rodger of Earlsferry observed that, in general, the need to use the common law principle of legality has been superseded by HRA.

"In using the language of 'constitutional rights', the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation. Now that the Human Rights Act 1998 is in place, such heroic efforts are unnecessary: the Convention rights form part of our law and provide a rough equivalent of a written code of constitutional rights, albeit not one tailor-made for this country. In general, at least, where the matter is not already covered by the common law, but falls within the scope of a Convention right, a claimant can be expected to invoke his remedy under the Human Rights Act rather than to seek to fashion a new common law right: ...".

To my mind this suggests that if a remedy is excluded by an application of HRA, there is no scope for a separate appeal to the common law principle of legality. In Simms Lord Hoffmann made it clear that "Parliament can, if it chooses, legislate contrary to fundamental principles of human rights." And in paragraph 59 of his opinion in Watkins, Lord Rodger of Earlsferry stated that Parliament can abrogate a "constitutional" right by express enactment. Assuming in favour of the petitioners that section 3 of the 1983 Act does contradict a fundamental principle of human rights (something which could be debated in the light of the observations in Hirst that states have a wide margin of appreciation in respect of prisoners' voting rights) it is clear that in the 1983 Act Parliament has chosen to legislate in a manner contrary to those rights. The words of section 3(1) could hardly be expressed in clearer terms. Further, that intention was carried forward to the Scottish Parliament elections by section 11 of the Scotland Act. The result is that the essential purpose and effect of the common law principle of legality, namely that Parliament cannot abrogate fundamental rights by the use of general or ambiguous words, does not arise in this case. The decision in Simms would have been different if the Prisons Act had expressly allowed the Home Secretary to prohibit visits by journalists intent on publicising protestations of innocence, something which, in the circumstances of that case, would have been the equivalent of section 3 of the 1983 Act in this case.

[8] I was initially troubled by the terms of section 12(4)(a) of the Scotland Act, which on one view gives the Secretary of State power to disapply section 3(1) of the 1983 Act in any order made under section 12. Although Mr O'Neill did not make any submission to this effect, I wondered whether it might be said that, in all the circumstances, the Secretary of State was under a duty to apply that power when making arrangements for the forthcoming election. (Mr O'Neill contented himself with a submission that this provision could be used to arrange Convention compliant elections if the current Order was otherwise unlawful for the reasons discussed above). However, it would be odd if a Minister was given such a wide-reaching power to alter the franchise by this back door method, and in the result I was persuaded by the Advocate General's submission that section 12(4) does not give the Secretary of State power to alter the franchise. He referred me to Bennion, Statutory Interpretation, 4^th ed. at section 81, where amendment of primary legislation by delegated legislation is discussed. The author noted a "judicial dislike" of the power and case law to the effect that it "should be narrowly and strictly construed." In R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2 AC 349 Lord Bingham of Cornhill at 382 noted that a narrow or strict construction of such powers has been endorsed by the House of Lords. "Recognition of Parliament's primary law making role in my view requires such an approach." Adopting this approach I consider it clear that, whatever scope for manoeuvre there may be in terms of section 12(4)(a), it does not extend to arranging elections in which prisoners have the vote. As the Advocate General observed, the power in section 12(4)(a) is limited to the application of provisions, not to the disapplication of restrictions on the franchise. Further, it can be noted that section 12(4) applies only in the context of an order made under sub-section (1), which, so far as relevant for present purposes, provides for an order making provision as to "the conduct of elections for membership of the Parliament." Even without the application of the narrow or strict approach, I consider that it would difficult to stretch this to cover the franchise at such elections, especially given the separate provision therefor in section 11. The restricted scope of an order under sub-section (1) would also apply to the powers granted in sub-section (4), thus the Secretary of State has no power to disapply section 3 of the 1983 Act. The Advocate General presented some fall-back submissions if I was against him on the central issue, for example in relation to the court's power to preserve non-infringing parts of the order. In the event I need not rehearse nor address these submissions.

The conduct of the Scottish Ministers
[9] At the outset Mr O'Neill indicated that his main attack related to the 2007 Order. However he did present a submission to the effect that, given that the elections will proceed in a Convention incompatible manner, any involvement of the Scottish Ministers in them, whatever the purpose or effect of that involvement, would be incompatible with the petitioners' Convention rights, and thus, standing the terms of section 57(2) of the Scotland Act, the Scottish Ministers have no power to have any involvement whatsoever in the elections. Any such conduct is "tainted" by the incompatibility. Mr O'Neill recognised that the local government elections fall outside the scope of the Convention right relied upon and thus also beyond the rulings in Hirst and Smith, but submitted that one cannot disentangle the two parts of the poll. In response Mr Cullen invited me to apply similar reasoning to that expressed in my recent refusal of a petition by another prisoner, see Birrell Petr. [2007] CSOH 73. He submitted that the involvement of the Scottish Ministers concerns matters wholly unrelated to the petitioners' legal incapacity to vote. That incapacity is the direct result of section 3 of the 1983 Act. The Scottish Executive has no involvement in the rules and arrangements regarding the franchise. The petitioners suffer no further prejudice from the Scottish Executive's efforts to promote awareness of and participation in the election. Unlike in Birrell, there is not even a causal link between the Executive's actions and the breach of the petitioners' Convention rights. I agree with Mr Cullen's submissions. I do not propose to repeat my reasoning in Birrell. In summary, an incompatibility within the meaning of section 57(2) involves mutual intolerance or irreconcilability between the act complained of and the Convention right said to be infringed. If one considers the Scottish Ministers' actings alongside the terms of article 3 of the first protocol, it is clear that there is no incompatibility. The breach of the petitioners' Convention rights flows from section 3 of the 1983 Act, a matter wholly outside the Scottish Ministers' responsibilities, and quite separate from their participation in the Vote Scotland campaign and their other involvement in the arrangements for the elections. I agree with Mr Cullen's submission that the petitioners are stretching the concept of incompatibility well beyond its breaking point. In his second speech Mr O'Neill accepted that there is no foundation for his averments concerning the Scottish Ministers acting as agents for the UK Government in the election. Standing the terms of the correspondence with the Advocate General's office, that concession could hardly have been withheld.

[10] Mr O'Neill sought to reserve the petitioners' claim for damages until a later stage. However in the result these claims must fall along with the rest of the petitions. Had the matter arisen for decision I would have been sympathetic to Mr Cullen's submission that, under reference to the opinion of Lord Bingham of Cornhill in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 at paras.8-13, the absence of any causal link between the actings of the Scottish Ministers and the petitioners' inability to vote rebuts any relevant claim for damages against them. A similar line of defence is available to the Secretary of State, in that the petitioners' inability to vote can be attributed to section 3 of the 1983 Act. More generally, Mr O'Neill relied on several decisions of the Strasbourg court awarding damages to those adversely affected by the Italian Government's ban on voting by bankrupts. However, Mr O'Neill did not satisfy me that these decisions should be treated as superseding the same court's refusal of a prisoner's financial claim in Hirst.

[11] I should record that I was asked to repeat the declarator of incompatibility pronounced in Smith. There is no dispute in these petitions as to the incompatibility between section 3 of the 1983 Act and article 3 of the first protocol. The discussion focused on other matters. That incompatibility has been authoritatively determined in Smith. I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate. For the above reasons I refused the petitions.