Prisoner votes: EU won’t help

13 April 2011 by

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 [2011] 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).

Section 3 of the Representation of the People Act 1983 remains unamended by the rulings in  Hirst v United Kingdom (No 2) (2006) 42 EHRR 849 and Greens and MT v United Kingdom (23 November 2010) that

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 [2006] 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.

Petition dismissed

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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  1. Hecate Bellis-Jones says:

    Hah! Bosch!

    Up to your old tricks again, I see!


  2. Hironimous Bosch says:

    However, the prisoner could try to address the matter from an EU social/employment law perspective……..

    This is a long shot but……

    1. There is a disproportionate number of minority citizens in jail.

    2. EU law prohibits discrimination in the selection of applicants for employment.

    3. It is an aspect of preparing for employment that prisoners need rehabilitation.

    4. It is also desirable that prisoners work when they are released to reduce the incentive to re-offend.

    5. Therefore, it could be an aspect of preparing for employment when released that there be no unlawful discrimination of an indirect or direct variety in the selection of candidates.

    6. One aspect of the suppression of discrimination within the workplace could be the ability to vote for a party or candidate with policies designed to achieve that objective.

    7. Failure to include prisoners on the electoral roll could lead to a failure to suppress procedures which entail unlawful discrimination.

    8. This, then, would be a violation by the U.K. of it’s obligations under Directive 2000/43.

    Hironimous Bosch LLB LLM

  3. We’re in two minds about this one ourselves, it’s tricky!

    If we presuppose that justice is perfect, then we can easily suppose that anyone who has committed a crime shouldn’t necessarilty be entitled to vote. Mind you, so many people choose not to vote despite enjoying ‘freedom’; are these prisoners making a stand against injustice or are they just trying to cause problems?

    This is a big assumption though because we know that the judicial system is a game and that not everyone serving a prison term is actually guilty of anything.

    Perhaps it’s the principle that’s at stake? How many of the prisoners fighting for this concession have always voted? Is this all just vexatious nonsense? Why would a prisoner be concerned about the ability to vote unless there is an underlying principle of “they’ve taken everything else, why should they have this as well?”

    If we take the stance of “if you break the laws of society then you have given up the right to vote” then we have to ignore the fact that so many central and local government officials and personnel are guilty of fraud, corruption and a host of other crimes yet they remain free to vote – where do we draw the line?

    We all know that our Judges are fence sitters and just want an easy life – they do not want to make controvertial decisions that may be strutinised so they like nothing better than to quote statute, close the book and shout “next!”

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