George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session  CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention.
The petitioner sought a declarator to that effect and an order an order requiring the respondent to include him on the Register of Local Government Electors. In the event that the local government elections went ahead without him being able to vote, the petitioner also sought Francovich damages for the contravention of his EU rights (that principle encapsulates state liability in damages for breach of EU law).
it offends against Article 3 Protocol 1 by imposing a blanket ban on prisoners from participating in elections.
The EU law argument
The petitioner submitted that local government elections fell within the ambit of EU law. Entitlement to vote in local government elections, he argued, was extended to “citizens of the Union” 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. Thus was EU law engaged. Moreover Article 8b1 of the Maastricht Treaty (now Article 22 TFEU) granted every citizen 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. And EU citizens enjoy the right to vote in municipal elections in their Member states of residence under Article 20(2) TFEU, subsection (b) of which provides -
(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
The petitioner contended that the words after the comma 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. He relied, inter alia, on an ECJ authority in which that 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 (Eman and Sevinger v Municipal Executive of The Hague, Netherlands  ECR I-8060.
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.
This, said the petitioner, notwithstanding the effect of the “opt out” Protocol for Poland and the United Kingdom, does function as an interpretative provision which does not detract from the obligation of the United Kingdom to respect the rights set out in the Charter. (See our discussion of the Charter and the effect of the UK “opt out” here.)
In summary, then, he submitted that the relevant provisions of UK legislation accordingly deprived him of the genuine enjoyment of his citizenship right, they contravened the EU principle of equal treatment and were 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.
Lord Tyne accepted the respondent’s argument that the petitioner, instead of applying for judicial review, should have availed himself of the statutory process which was designed to facilitate the speedy resolution of an appeal against refusal of registration. The matter therefore fell within the restriction on availability of judicial review (Rule of Court 58.3(2). An application for judicial review was 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.
Although he dismissed the petition Lord Tyre did express his views with regard to the proposed EU law incompatibility of disenfranchisement of convicted prisoners.
Does the Lisbon Treaty confer a directly effective right to vote?
In Lord Tyne’s view, the words in 20(2)(b) “under the same conditions as nationals of that State” which follow the comma are “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” would make no sense. Nor did the ECJ case law convince him that EU citizenship rights can be asserted without the need to demonstrate a cross-border element between member states. 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.
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